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High Court of New Zealand Decisions |
IN THE HIGH COURT OF NEW ZEALAND
WELLINGTON REGISTRY
CIV-2003-485-1322
BETWEEN MIRO PROPERTY HOLDINGS
LIMITED
Plaintiff
AND LING 2 INVESTMENTS LIMITED
First Defendant
AND C B RICHARD ELLIS LIMITED
Third Party
Judgment: 6 October 2005
In accordance with r540(4) I direct the Registrar to endorse
this judgment with a
delivery time of 9.00am on the 6th day of October 2005.
JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
[1] On 19 April 2005 I gave judgment in this matter on an application by the
plaintiff for particular discovery and for an
order setting aside the defendant's claim
to privilege over certain documents.
[2] In a directions conference held on 12 July
2005, counsel for the plaintiff and
counsel for the defendant identified certain specific discovery issues related to
matters which
were dealt with in my 19 April 2005 judgment which required further
Court directions.
[3] Associate Judge Faire who presided
at that directions conference issued a
Minute requiring counsel to file memoranda setting out the complaints concerning
discovery
and responses. The matter was then to be referred to me for further order
or direction.
MIRO PROPERTY HOLDINGS LIMITED V LING 2
INVESTMENTS LIMITED HC WN CIV-2003-485-
1322 6 October 2005
[4] Counsel for the plaintiff and counsel for the defendant have
filed memoranda
with respect to these issues, which I have now had an opportunity to consider. I now
set out my decision with respect
to what I understand are the outstanding issues.
Document 778
[5] It seems from comments made in the memorandum dated 1 August
2005
filed by counsel for the defendant that privilege is mistakenly challenged by the
plaintiff with regard to this document. Privilege
apparently is not claimed for that
document. A copy of the document was forwarded to the plaintiff's solicitors on 6
July 2005.
Counsel for the defendant advises that this was done in case this
document had been inadvertently omitted from the documents the
plaintiff's
solicitors meant to request in their letter of 21 June 2005.
[6] This appears to deal with document 778.
Documents
703, 704, 705 and 707
[7] The defendant has provided these documents in a sealed envelope to the
Court, and I have now had an
opportunity to consider them.
[8] These documents were discovered on page 3 of the further affidavit of Kay
Cobb sworn 3 June
2005 under the heading CBRE File, 335 FEA, "Featherston
Medical Centre".
[9] Privilege was claimed for these documents in so
far as they:
...consist of communications between the defendant, the defendant's
solicitor and the defendant's agent,
the third party, for the purpose of and as
part of the preparation for settlement of the agreement for sale and purchase
on 18 December 2002.
[10] The defendant submits that these documents are part of the continuum of
communications between
the defendant and its solicitor. It is contended that, clearly
on their face they were made for the purpose of giving and taking
instructions,
obtaining legal advice, and completing the transaction concerned.
[11] Having considered the actual documents in
question, I am satisfied that this is
the case, and that the defendants' claim to privilege here is justified.
[12] Counsel for
the defendant does go on to argue that strictly speaking, these
documents may not in any event be considered to be relevant. He argues
that none
of the plaintiff's claims in this proceeding concern this particular tenant, and any
possible relevance appears to arise
only after settlement of the Agreement for Sale
and Purchase on 18 December 2002 in respect of the plaintiff's lifts' claims. Given
my findings at paragraph [11] above, however, I need
make no comment as to these
aspects.
[13] The defendant's claim to legal professional privilege with respect to these
documents
703, 704, 705 and 707 therefore succeeds.
Document 303/318
[14] Document 303 is the same document as document 318. The defendant
has
produced these documents in a sealed envelope to enable them to be considered by
me.
[15] The defendant submits that document
303/318 is part of the continuum of
communications between the defendant both in the form of its authorised
representative in New
Zealand (Ms Cobb) and the third party, with the defendant's
solicitor Mr Mulholland, in the context of providing advice and legal
assistance on
the issues remaining after settlement of the Agreement for Sale and Purchase on 18
December 2002. Apparently
the third party was at this time involved as the
defendant's property manager in attending to certain issues that remained after
settlement.
[16] In this regard, counsel for the defendant refers to Three Rivers District
Council & Ors v Governor and Company
of the Bank of England (2004) UK HL 48,
and Balabel v Air India (1988) 1 Ch 317.
[17] Having had the opportunity to consider these documents, I am satisfied that
there is substance in this argument on the
part of the defendant. As I see it, the broad
purpose of the communication contained in document 303/318 is for the obtaining of
legal advice by the defendant during the course of this commercial transaction and in
terms of the test outlined in Balabel and Three
Rivers District Council it is
privileged.
[18] Accordingly, I find that this document 303/318 is privileged, and the
plaintiff's
challenge to this privilege fails.
Third Party's Document Handover List
[19] At paragraph [9] of my judgment of 19 April 2005
I set out the terms of
further and better discovery sought in the plaintiff's 22 September 2004 application.
[20] At paragraph
[36] of that judgment I concluded that:
a) Further discovery was to be given by the defendant of the files
specifically numbered 2.1(i)-(xvi) inclusive in the extract from the
plaintiff's application set out at
paragraph 9 of the judgment.
b) Further discovery was not to be given by the defendant in respect of
the files numbered 2.1(xvii)-(xix) inclusive.
[21] Discovery of those files numbered 2.1(xvii)-(xix) was refused because
as
"Paid Creditor Invoices", "Creditor Invoices from Cheque Runs, and "Miscellaneous
Accounting Correspondence" files, I found they
can not be said to be relevant to
matters before the Court in this proceeding refer paragraph [35] of that judgment.
[22] The
plaintiff now apparently seeks discovery of further files which have been
listed in the Third Party's Document Handover List but
which were not specifically
listed in itemised form in Schedule A of the plaintiff's discovery application. In
particular the plaintiff
seeks discovery of a range of files marked "x" on attachment 2
of the Memorandum of Counsel for the Plaintiff dated 1 August 2005.
[23] Despite submissions from the defendant to the contrary, I am satisfied that in
doing this, the plaintiff is not seeking
to bring a widened second application for
further and better discovery in respect of files it had not previously identified in its
application. The original application sought discovery of "all relevant documents
contained in the files listed in the Third Party's
`Document Handover List' (being
CBRE document 146) including (but not limited to) the following files...".
(emphasis added).
[24]
The range of files marked "x" on the plaintiff's attachment 2 noted at
paragraph [22] above fall into several broad categories.
The first group are
tenant/lease files. In line with my comments at paragraph [29] of my 19 April 2005
judgment, I am satisfied
in terms of the wide Peruvian Guano test that these files
also may potentially have relevant information relating to complaints,
safety issues
or discussions concerning the Wool House lifts and air-conditioning system, and as
such they should be discovered.
[25] Accordingly, an order is now made that:
a) That within 20 working days of the date of this judgment the
defendant is to file and serve an affidavit stating whether the
documents referred to in paragraph (c)
below are or have been in its
possession, custody or power.
b) That within 30 working days from the
date of this judgment the
defendant is to produce for inspection by the plaintiff the documents
referred
to in paragraph (a) above.
c) The documents concerned are tenant/lease files noted as follows:
i)
Blue Star Print Group (Box No. 2 and Box No. 6)
ii) Booz Allen Hamilton (Box No. 2 and Box No. 6)
iii) Brandon Suit Hire (Box No. 2 and Box No. 6)
iv) Byrd Services (Box No. 2 and Box No. 6)
v) Capital Travel (Box No. 2 and Box No. 6)
vi) Dataram International (Box No. 2 and Box No. 6)
vii) Gerling EXGO (Box No. 2 and Box No.
6)
viii) Infomedia Associates (Box No. 2 and Box No. 6)
ix ) K Makarios (Box No. 2 and Box
No. 6)
x) NZ Meat & Wool Boards' Economic Service (Box No. 2 and
Box No. 6)
x i) NZ Meat Board (Box No. 2 and Box No. 6)
x ii) H Pattinson (Box No. 2 and Box No. 6)
x iii) Telco Property Services (Box No. 2 and Box No. 6)
xiv) NZ Wool Board Tenant Files 1983-2001 (Box
No. 3)
xv) NZ Wool Board Tenant Files 1983-2001 (Box No. 4)
xvi) Claire Dominick (Box No.
6)
[26] The second group of files marked "x" on the plaintiff's attachment 2 noted at
paragraph [22] above are listed under the
general heading "Building Maintenance
Files May 2001 to December 2002" and are listed under the following headings:
i) Cleaning (Box No. 7)
ii) Electricity and lights (Box No. 7)
iii) Fire Protection
(Box No. 7)
iv) Gas (Box No. 7)
v) Pest Control (Box No. 7)
vi)
Emergency Generator (Box No. 7)
vii) BMU (Box No. 7)
viii) Building Intelligence and Emergency
Services (Box No. 7)
ix ) Security (Box No. 7)
x) Access Control (Box No. 7)
x i) Access Control (Cards) (Box No. 7)
x ii) Gardening (Box No. 7)
x iii) Monthly
Inspection Reports (Box No. 7)
xiv) IQP Inspections (Box No. 8)
[27] Issues as to the relevance of these
files obviously arise. Counsel for the
defendant submits that rather than a generalised submission as to discovery of these
particular
files, the plaintiff should be required instead to set out in memorandum
form on a file by file basis the details in each case of:
a) The issue before the Court in this proceeding which the plaintiff
maintains the file is relevant
to; and
b) The basis on which the plaintiff maintains that file is relevant to that
issue.
[28]
The defendant's position is that if, having received these details, the plaintiff
and the defendant can not informally resolve
matters, then the plaintiff can refer this
matter to the Court for an appropriate ruling.
[29] It is correct that counsel for
the plaintiff has made no specific submission
with respect to the relevance of each of the Building Maintenance Files referred to
above.
[30] Rather than simply at this stage declining any discovery order with regard to
these files, the better approach,
as I see it, is to follow the suggestion made by
counsel for the defendant which I have referred to in paragraphs [27] and [28] above.
[31] The following direction is therefore made:
a) Within 20 working days of the date of this judgment the plaintiff
is to
file and serve a memorandum setting out the details on a file by file
basis of the matters
noted at paragraph [27](a) and (b) of this
judgment to support a finding that documents in these files are
relevant and should be discovered.
b) The defendant is to have a period of 10 working days from receipt
of
that material to file and serve its memorandum in response.
c) In the absence of some agreement
between the plaintiff and the
defendant resolving these issues, then appropriate memoranda are to
be filed and I will consider the question of discovery of these
additional documents based upon the material filed.
[32] The third category of files marked "x" on the plaintiff's attachment 2 noted at
paragraph [22] above seems to encompass a broad range of miscellaneous files
which are titled:
a) Insurance Manual (Box No. 2)
b) General plans (Box No. 2)
c) Level 1 Vacant Space
(Box No. 6)
d) Transition/Settlement NZ Wool Board (Box No. 5)
e) Standard lease documents (Box
No. 5)
f) Featherston Medical Centre fire report and fit out plans (Box No. 8)
g) Service Contracts
(Box No. 8)
h) Development Options (Box No. 8)
i) Deed of Lease Ag Research (Box No. 8)
j) Copies of invoices/correspondence relating to claims for Level 1
water damage
k) Copy
of agency fee invoice for sale of Wool House
l) Letter to NZMIA re premises rent reimbursement January 2003.
[33]
Again, the relevance of the material contained in these files may well be
questionable, but there is little before the Court at
present to assist in a determination
of this issue.
[34] As I see it, a similar direction to that outlined in paragraph [31]
above is
appropriate here.
[35] Accordingly, the following direction is now made with respect to these files
listed at paragraph
[32] above:
a) Within 20 working days of the date of this judgment the plaintiff is to
file and
serve a memorandum setting out the details on a file by file
basis of the matters noted at paragraph [27](a) and
(b) of this
judgment to support a finding that documents in these files are
relevant and should
be discovered.
b) The defendant is to have a period of 10 working days from receipt of
that material
to file and serve its memorandum in response.
c) In the absence of some agreement between the plaintiff and the
defendant resolving these issues, then appropriate memoranda are to
be filed and I will consider
the question of discovery of these
additional documents based upon the material filed.
Third Party's Monthly Management
Reports
[36] The plaintiff notes that the defendant was ordered to discover CBRE Monthly
Detailed Reports to the owner, but has
only discovered extracts of certain pages from
those reports.
[37] In response, counsel for the defendant claims that as might
be expected, these
documents contain various information which the third party reported to the
defendant over the period it managed
the building which is not relevant to the
matters before the Court in this proceeding. Accordingly, the defendant states that
only
extracts of the relevant parts of the documents have been discovered.
[38] In turn, counsel for the plaintiff has indicated that
after cross-checking lists
and documents discovered by the parties and by Otis, a non-party, it appears that
some nine documents
which she outlines at paragraph 8 of her memorandum to this
Court dated 1 August 2005 have not been disclosed by the defendant to
date, but
these may well have been included in the CBRE Monthly Detailed Reports files.
[39] That said, and given that, as I
noted at paragraph [31] of my 19 April 2005
judgment, in terms of the wide Peruvian Guano test, the CBRE monthly detailed
reports
to the owner may very well contain relevant material and should be
discovered, I am satisfied that the full CBRE Monthly Detailed
Reports to the owner
from May 2001 to December 2001 should be discovered. If matters of privilege
arise, then they can be appropriately
raised.
[40] An order therefore follows in the following terms:
An order is now made that within 30 working days from
the date of this
judgment the defendant is to produce for inspection by the plaintiff the full
CB Richard Ellis Limited
Monthly Detailed Reports to the owner.
[41] As I understand it, for present purposes this now deals with the outstanding
discovery issues raised by counsel. Leave is reserved,
however, for either party to
approach the Court on three days notice in the meantime if any further discovery
matters need consideration.
__________________________
Associate Judge D.I. Gendall
Solicitors:
Mike Garnham, Barristers & Solicitors, Wellington for Plaintiff
Ross Mulholland Law, Wellington for Defendant
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