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BIL NZ Treasury Limited v PricewaterhouseCoopers New Zealand [2022] NZHC 150 (10 February 2022)

Last Updated: 5 April 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

• [1] The background to this claim by the four plaintiff companies, which are all members of the Brierley group (“the Brierley companies”), against the defendant firm of chartered accountants, PricewaterhouseCoopers (“PwC”), was fully described in

BIL NZ TREASURY LIMITED v PRICEWATERHOUSECOOPERS NEW ZEALAND [2022] NZHC 150

[10 February 2022]

my judgment of 29 June 2021.¹ For consistency as much as anything else I reiterate my summary from that judgment here:

• [2] In mid-1998 the plaintiffs engaged PricewaterhouseCoopers (then Coopers & Lybrand) to provide accounting services. Unsurprisingly, given that these arrangements were made when they were, there is no evidence of a formal contract for services between the parties. There is a letter written to the plaintiffs by PwC in relation to the original engagement dated 28 May 1998, to which it will be necessary to return.

• [3] The plaintiffs say that between 1998 and 2018, they acted on advice received from PwC as to how they could use substantial historical losses. The plaintiffs had accumulated losses in the order of $1,582,000,000. These would of course only be of any value to them if and when they generated income against which they could be offset. At the time that the plaintiffs engaged PwC, there appears to have been no obvious prospect of that. What the plaintiffs needed to do was to find a way of generating income, internally or by the acquisition of a new, income-generating business. In the meantime, they needed to ensure that the losses could be carried forward year on year until they could be utilised.

• [4] It was in relation to this issue —how these losses could be carried forward — that the plaintiffs say they sought advice from PwC.

• [5] They say that PwC provided both initial advice and ongoing advice in relation to this over the years already referred to.

• [6] Finally, they say that, during the financial year ending 30 June 2019, in circumstances which need not be described here, it became apparent that the advice that PwC had provided was wrong, and that as a result the opportunity to utilise the tax losses was lost.

• [7] The plaintiffs sue PwC claiming unspecified damages alleged to follow from the loss of the chance to take advantage of those losses.

• [8] PwC denies liability. It says that the arrangements that were put in place were developed by the plaintiffs’ internal advisers; that to the extent that it provided any advice this was sound; and that, even if its advice had not been correct, the plaintiffs’ claim is for the loss of a chance and they will not be able to prove that at any point they were able to generate income which would have enabled them to avail themselves of the chance.

• [2] That judgment dealt with applications by both the Brierley companies and PwC for further discovery. Both applications were successful in part. Since then the Brierley companies have filed and served a third amended statement of claim, and PwC has pleaded to this fourth iteration of the claim against it. Both parties now raise further issues concerning discovery.

¹ BIL NZ Treasury Limited v PricewaterhouseCoopers New Zealand [2021] NZHC 1556 [29 June 2021], reissued on 3 September 2021.

• [3] By application dated 2 November 2021 the Brierley companies sought further discovery in relation to categories of documents identified in a schedule to their application.

• [4] For its part, by application dated 29 October 2021, PwC sought orders:

(a) clarifying whether the Brierley companies had possession or control of certain categories of documents described in the schedule to its application and providing information so as to enable PwC to satisfy itself that an adequate search had been carried out in order to assess whether any such documentation was relevant to the issues in this litigation;

(b) providing discovery of any documentation in those categories that the Brierley companies did have in their possession or control; and

(c) setting aside certain claims to privilege made by the Brierley companies.

• [5] Both applications are opposed.

• [6] By the time these applications were heard, the issues for determination had narrowed, thanks, no doubt, to sensible cooperation between counsel.

Key principles relating to discovery

• [7] Effectively, both parties’ applications are made pursuant to r 8.19 of the High Court Rules 2016 which provides:

8.19 Order for particular discovery against party after proceeding commenced

If at any stage of the proceeding it appears to a Judge, from evidence or from the nature or circumstances of the case or from any document filed in the proceeding, that there are grounds for believing that a party has not discovered 1 or more documents or a group of documents that should have been discovered, the Judge may order that party—

(a) to file an affidavit stating—

(i) whether the documents are or have been in the party’s control; and

(ii) if they have been but are no longer in the party’s control, the party’s best knowledge and belief as to when the documents ceased to be in the party’s control and who now has control of them; and

(b) to serve the affidavit on the other party or parties; and

(c) if the documents are in the person’s control, to make those documents available for inspection, in accordance with rule 8.27, to the other party or parties.

• [8] The approach to such applications is well settled and not controversial.

• [9] Discovery — the process whereby the parties to litigation are able to require the other parties to disclose any documentation in their possession or control which is relevant to the issues in the case — is perhaps the most important interlocutory or pre-trial step in any proceeding. Its purpose is to ensure fairness by guarding against trial by ambush. The essential principle that applies to discovery, in the same way as it applies to pleadings and other pre-trial steps, is that the parties must put their cards on the table. Generally, the process will begin with the Court making an order that the parties provide discovery, whereupon their solicitors — assisted by counsel as necessary — will review all material in the party’s possession or control relating to the case. The job of the parties’ solicitors is to identify, by reference to the pleadings, what is and is not relevant. The documentation is then listed in an affidavit of documents which describes each document or category of documents. The documents are categorised into open documentation that the party concerned must disclose (subject only to such protection as the Court may order for genuinely confidential material) and privileged material in respect of which the party claims a right not to disclose. The most common privileges are legal professional privilege, litigation privilege and without prejudice privilege.

• [10] I have described the process in detail because it leads to the starting principle for all applications under r 8.19, namely that the Court will treat a properly sworn and apparently comprehensive affidavit of documents as conclusive. It is only where an applicant for further discovery can point to genuine reasons for thinking that discovery is not adequate that the Court will make an order requiring a party to provide further discovery.
• [11] What then are the tests that the Court applies?

• [12] These have recently been summarised by this Court in Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd.

• [13] In that case, the Court said: ²

“Clearly the existence of the document or documents does not have to be established on the balance of probabilities or on a more likely than not basis. The threshold embedded in “grounds for belief” is not that high. In the end it is unnecessary to try and precisely define the threshold, as it may vary given the relevance of the documents and issues of proportionality. In my view all that is necessary is to show that there is some credible evidence which assessed objectively indicates that the documents that are sought exist. It is not necessary to be more precise than this.

• [14] I turn now to the issues for determination.

The Brierley companies’ application

Lotus Notes mailboxes

• [15] In my 29 June 2021 judgment I ordered PwC to provide discovery of the Lotus Notes email mailboxes of certain PwC staff for the period prior to 2011. The cut-off at the conclusion of 2010 reflects the fact that PwC migrated from the Lotus Notes platform to a different platform from the beginning of 2011. PwC has provided such discovery and in a further affidavit of documents dated 30 July 2021 has identified the search terms that it employed in doing so. This has resulted in the discovery of a small number of additional documents. The Brierly companies say that the search terms used were too narrow and would not have identified all relevant documentation. PwC’s response is to say that it will carry out a second search of the relevant Lotus Notes mailboxes using the search terms that the Brierley companies say should have been used (subject to one qualification to which I will return) and discover any further relevant material that that search throws up.

² Assa Abloy New Zealand Ltd v Allegion (New Zealand) Ltd [2015] NZHC 2760; 2018 NZAR 600 at [12].

• [16] That proposal does not satisfy the Brierley companies. They say that having re-interrogated the relevant Lotus Notes mailboxes in question PwC should be ordered to discover all documentation that the searches identify.

• [17] This is an issue that arises from time to time, typically following orders for tailored discovery (that is to say an order not simply that a party discover all relevant documentation in its possession or control, but rather that it provide discovery of documentation in specific categories). The issue is whether, in the case of an order for tailored discovery, the party concerned, having carried out the necessary search, is obliged to discover all documentation that the search throws up or must review the documentation and assess it for relevance.

• [18] I touched on this issue in my judgment in Farrelly v Wellington City Council.³ There, I referred to cases pointing both ways. The view I expressed, was that, as relevance is the most elementary principle governing discovery, and applies to standard discovery orders and tailored discovery orders alike, a party is never obliged to discover irrelevant material.⁴ On that basis, I concluded that, even in the case of an order for tailored discovery, a party must still review documentation and is only obliged to discover relevant material.

• [19] To illustrate this, let us imagine that two PwC employees were communicating by email in relation to the advice that PwC was providing to the Brierley companies. In doing so, they were using a header which meant that all email exchanges in the string were identified as relevant by the search terms used. However, at some point of the exchange, the employees in question moved on to an entirely different topic concerning a different client or for that matter a personal exchange. It seems plain to me that PwC would not be obliged to discover the latter exchanges.

• [20] Accordingly, the view I take is that PwC’s proposal to carry out a further search using search terms proposed by the Brierley companies and discover all relevant material that such a search throws up is a sensible and appropriate response, and I propose to make an order in those terms.

³ [2019] NZHC 1875 at [18]- [22].

⁴ At [22].

• [21] I need to return however to the qualification referred to earlier. In the schedule the PwC distinguishes between New Zealand PwC email addresses and overseas PwC’s emails addresses, saying that it will run the searches only in conjunction with “other search terms” in the case of the overseas PwC email addresses “to avoid overboard results”.

• [22] I have not been told what the other search terms proposed are. However, this appears to be a small point and if PwC regards it as necessary to add additional search terms in respect of the overseas PwC email addresses then no doubt counsel will cooperate in settling what those are.

Lotus Notes mailboxes post-2011

• [23] As already indicated, it is common ground that during 2011 PwC migrated from its former Lotus Notes-based system to an iManage-based system. On that basis, PwC says that there is simply no need to carry out a search of the Lotus Notes PwC email addresses after 2011 because every document generated which could be relevant to the issues in this proceeding will be in the iManage PwC mailboxes. The Brierley companies do not accept this. They say that there is a genuine chance that the material generated after 2011 may nevertheless be found on the former system.

• [24] The question is whether there is any evidential foundation for this assertion.

• [25] In his written submissions Mr Hollyman summarised the evidence to which the Brierley companies point in the following terms:

27. PwC has discovered emails sent to individuals from PwC and PwC Legal where the attachments to those emails have not been discovered.

28. The discovered documents also indicate:

(a) Internal PwC and PwC Legal correspondence and documents that have not been discovered. For example:

(i) emails recording internal discussions within PwC Legal, and discussing between members of PwC and PwC Legal, yet no file notes have been discovered.

(ii) emails indicating the involvement of junior members of PwC Legal in the provision of advice to the

plaintiffs, yet little or no internal correspondence has been discovered involving these individuals.

(b) The likely existence of relevant internal PwC correspondence that has not been discovered. For example, between 2014 and 2016, engagement partner responsibility for the plaintiffs was transferred from Stewart McCulloch to Michael Hinton (in 2015) and to Eleanor Ward (in 2016), yet there are no documents showing the handover process or any internal briefings.

• [26] On the basis of that material, Mr Hollyman submits that:

“The simplest way to ensure that PwC has discovered all relevant documents in the post-2011 period is for PwC to run the PwC Search Terms and the Additional Search Terms over its post-2011 mailboxes.”

• [27] PwC’s response is that its iManage filing system has been reviewed by its solicitors and any relevant documentation identified.

• [28] I am not satisfied that the matters referred to by Mr Hollyman demonstrate that there is a real prospect of the existence of any further relevant material in the post-2011 Lotus Notes PwC email addresses. It appears to me that what Mr Hollyman is pointing to is not evidence of the existence of relevant material but rather speculation to the effect that such material may exist. In my view that does not go far enough.

• [29] I am not prepared to make the order sought.

The iManage folders

• [30] It is perhaps this aspect of the claim which brings into focus most directly the principle that an apparently comprehensive and appropriately sworn affidavit of documents is to be treated as proper discovery unless there is evidence demonstrating otherwise.

• [31] The Brierley companies say that the Court should be concerned as to whether or not discovery of PwC’s iManage folders has been adequate. Again, it appears to me that the principal basis for this is that PwC has not discovered every document thrown up by the search it has carried out but rather what it has identified as relevant

documentation. PwC has also expressly indicated that it has not discovered documentation thrown up by this search which is irrelevant to the issues in the case.

• [32] Mr Hollyman submits that cannot be right in the case of either PwC or PwC Legal. His contention is that as those entities were engaged for a particular purpose

— and no other — it follows that every document thrown up by these searches will be relevant.

• [33] For the reasons already articulated, the view I take is that even in the case of an order for targeted discovery, the obligation on the party providing discovery is to review the documentation and it is not obliged to discover irrelevant material.

• [34] I reject the submission that simply because PwC and PwC Legal were engaged in relation to this task it necessarily follows that every document thrown up by these searches will be relevant. I have already offered an example of the kind of irrelevant documentation that may be thrown up. I can see no evidential basis for concluding that PwC and its solicitors have not carried out a thorough analysis of the documentation thrown up by these searches.

• [35] I am not prepared to make the order sought on the basis that PwC’s discovery is conclusive on its face and there is no foundation for suggesting that it is not complete.

Wellington shared drive

• [36] As Mr Hollyman says in his written submissions, the argument advanced by the Brierley companies in relation to the Wellington shared drive proceeds on precisely the same ground as the earlier arguments. The Brierley companies contend that all documentation identified by the searches carried out on the Wellington shared drive should be discovered whereas what PwC has discovered is documentation that it has concluded is relevant.

• [37] For the same reasons I have already given in relation to the earlier applications I am not prepared to make the order sought.

The discovery of hard copy documentation

• [38] Comparatively recently PwC has identified 50 or so boxes of hard copy documents which have been stored in an off-site Wellington storage facility.

• [39] In his written submissions Mr Hollyman submitted:

All these documents are relevant and should be discovered for the reasons outlined in respect of categories 3 and 4.

• [40] I see no foundation for that submission.

• [41] Merely because PwC has identified these boxes as containing documentation generated as a result of the firm’s engagement by the Brierley companies it does not necessarily follow that they are relevant to be pleaded issues.

• [42] Again, I see no foundation for questioning the comprehensive nature of the affidavit of documents sworn and filed on behalf of PwC. It is common ground that PwC, with the assistance of its solicitors, have reviewed this documentation, made a judgment as to how much of it is and is not relevant, and discovered only the former. I see no basis on which the Court would be justified in questioning that. I am not prepared to make the order sought.

Further specific documents

• [43] In his written submissions on behalf of the Brierley companies, Mr Hollyman contended that those companies are entitled to discovery of what he describes as “specific documents which are shown to exist but have not been discovered”. These are set out in a second schedule to his submissions. There are two categories of documents involved.

• [44] In relation to five of these the Brierley companies seek documents or categories of documents that they say the evidence indicates exist but which have not been discovered. PwC’s response is that a proper search has been carried out for the relevant documentation, that it cannot be located, and I infer they say also that there is no evidence to indicate that it ever existed.
• [45] I see no foundation for doubting that.

• [46] In relation to one document or category of documents PwC’s response is that the document in question has been discovered and it has given a reference to the document amongst the discovered material (PwC 003.00006).

The PwC application

Capital distribution/share acquisition documents

• [47] PwC seeks an order for further discovery of documentation in this category.

• [48] The Brierley companies provided a further affidavit of documentation which covers this category on 29 November 2021, and advise that there are no further documents. PwC accepts that.

Manuka Health purchase

• [49] The second part of PwC’s application relates to a transaction that the Brierley companies — or entities within the group — entered into in late 2018. Without going into any detail, its importance in the context of the litigation is that it was this transaction that apparently resulted in the Brierley companies concluding that they had lost an opportunity to benefit from their accumulated tax losses and took steps that realised this loss.

• [50] It is not difficult to envisage how the details of this transaction, including the structuring of it and the dealings between the Brierley companies and the Revenue are relevant on the pleadings. As Mr Friar submitted in his written submissions, such documentation is potentially “relevant because [it would] demonstrate whether or not the remaining approximately $260 m in tax losses could ever have been utilised in that transaction. If those losses were not used, it implausible for the plaintiffs to say that losses over and above the $260 m — that is, the losses claimed in this proceeding — would ever have been used”.
• [51] This category of documentation was addressed in my judgment of 29 June 2021, the Brierley companies being ordered to provide details of enquiries made to locate material in this category.

• [52] Mr Friar submits that in their fourth affidavit of documents the Brierley companies provided additional information but that all such documentation relates to the period leading up to the settlement of this transaction and that there has been no discovery of documentation post-settlement. His submission is that “such documents are relevant because they go [to] the issue of whether the plaintiffs would ever be able to utilise the tax losses in a transaction at all. The plaintiffs clearly must have such documents given the transaction in question occurred so recently”.

• [53] Mr Friar then refers to an exchange of correspondence between the parties’ solicitors in which the Brierley companies’ solicitors referred to — and have since discovered — five post settlement documents. His submission is that given the complexity of the transaction it is inconceivable that there are so few documents and clear that discovery has not been complete because the Brierley companies have not provided a copy of the sale and purchase agreement itself.

• [54] Since Mr Friar’s submissions were filed and served the Brierley companies have filed a further affidavit of documents which in part at least has met some of these concerns.

• [55] By the time the matter was heard only two issues remained:

(a) first, PwC is concerned that only email address of Mr Tang Hong Cheong who was apparently the President of GGL between 2016 and 2020 — so at all material times — has been searched; and

(b) secondly that the Brierley companies have not discovered the sale and purchase agreement.

• [56] As to these two points, Mr Hollyman submits that any relevant documentation related to this transaction would have been included amongst Mr Tang’s emails, he

having been the President of the company within the group that was primarily involved in the transaction at all material times. Mr Hollyman submits therefore that:

“This category of documents should be closed. There [are] no grounds to believe that the plaintiffs have any further documents in this category in their control. The plaintiffs have voluntarily obtained and discovered more than they are obliged to. This ground should be dismissed”.

• [57] But for the issue relating to the sale and purchase agreement, I would have been inclined to accept that. But the Brierley companies have offered no explanation as to why this document has not been discovered. Of course, it may simply be that they no longer have this within their possession or control, but that seems unlikely.

• [58] I propose to make an order in relation to this aspect of the application that the Brierley companies provide fuller discovery in relation to the sale and purchase agreement.

GL privatisation documentation

• [59] Subsequent to the earlier hearing that resulted in my judgment of 29 June 2021, one of the Brierley companies, the third plaintiff, GL Limited, was privatised and de-listed. This, PwC contends, has potential consequences for the Brierley companies’ ability to utilise the tax losses that were retained following the Revenue’s reassessment.

• [60] This contention seems to be uncontroversial because, following the public announcement of the privatisation and de-listing, PwC’s solicitors wrote to the Brierley companies’ solicitors seeking further discovery of documentation relating to the process and in their fourth affidavit of documents the Brierley companies provided discovery of such documentation. This did not include any documentation as to whether the Brierley companies had addressed the potential effect of the step on their ability to use the tax losses that had been retained, and, in a subsequent exchange of correspondence between the parties’ solicitors, enquiries were made about the existence of any such documentation. The Brierley companies’ sixth affidavit of documents includes some additional documentation concerning the privatisation and de-listing, but none of this apparently concerned the issue of the impact of this on the ability to use the tax losses.
• [61] It is common ground that in searching for such material the Brierley companies have reviewed board materials but not carried out a search for such material below board level.

• [62] In response Mr Hollyman makes the point that PwC’s pleadings contained no reference to the privatisation and de-listing prior to the filing and service of its amended defence dated 29 October 2021, the same day that PwC sought additional discovery within this category. That is hardly surprising, given that the transaction only occurred a few months earlier.

• [63] Mr Hollyman submits in effect that the search that has been carried out, that is to say of GL’s board papers and the email address of Mr Tang, is adequate and proportionate.

• [64] On that basis he submits that:

“this category of documents should be closed. There [are] no grounds to believe that the plaintiffs have any further documents in this category in their control, and in this respect the application should be dismissed”.

• [65] I agree. If there had been any serious consideration of the implications from a tax perspective of the privatisation and de-listing of this company within the group then any analysis — or a summary of it, or a reference to it would certainly have made its way to the board so that a search of the board papers should at least indicate whether or not any consideration was given to the point. It follows of course that if a proper search of the board papers has been carried out then it may well be open to a Court to infer that no consideration was given to this issue.

• [66] Accordingly, my view is that the search that has been carried out, of the board papers and Mr Tang’s email address, was an appropriate and proportionate one, and I decline to make any further discovery order in relation to this.

The Brierley companies’ affidavits of documents

• [67] By the time of the hearing no further issue existed in relation to disclosure by the Brierley companies of the scope of the searches they have carried out. The only remaining issue relates to the provision of further documentation.

• [68] On 29 November 2021 the plaintiffs indicated to PwC that they were undertaking a further review of hard copy documentation in Singapore and that they had located potentially relevant hard copy documentation in both New Zealand and Singapore and were reviewing this. I propose to make an order that the Brierley company complete that review and file a further affidavit of documents.

EY Law documentation

• [69] PwC contends that the Brierley companies have, by pleading the fact and essential terms of advice received by them from EY Law in March and June 2019 to the effect that the arrangements put in place to enable them to retain the benefit of the historical tax losses were not likely to be effective, and discovering the two opinions, waived their right to claim privilege in respect of any other material falling into the same category.

• [70] That is always a bold contention to advance. Generally, the law jealously protects a party’s right to claim privilege for its dealings with its legal advisers, most especially in the context of litigation. In relation to this point, Mr Hollyman referred me to a number of well-known cases that emphasise the importance of privilege.⁵ However, there are circumstances in which a party may lose that right.

• [71] The starting point is s 65 of the Evidence Act 2006. The section concerns waiver of privilege. Materially, it provides as follows:

65 Waiver

(1) A person who has a privilege conferred by any of sections 54 to 60 and 64 may waive that privilege either expressly or impliedly.

⁵ For example see: B v Auckland District Law Society [2003] UKPC 38, [2004] 1 NZLR 326 at [37]- [43]; or R v Derby Magistrates’ Court Ex Parte B [1995] UKHL 18; [1996] 1 AC 487 (HL) at 508.

(2) A person who has a privilege waives the privilege if that person, or anyone with the authority of that person, voluntarily produces or discloses, or consents to the production or disclosure of, any significant part of the privileged communication, information, opinion, or document in circumstances that are inconsistent with a claim of confidentiality.

(3) A person who has a privilege waives the privilege if the person—

(a) acts so as to put the privileged communication, information, opinion, or document in issue in a proceeding; or

(b) institutes a civil proceeding against a person who is in possession of the privileged communication, information, opinion, or document the effect of which is to put the privileged matter in issue in the proceeding.

(4) A person who has a privilege in respect of a communication, information, opinion, or document that has been disclosed to another person does not waive the privilege if the disclosure occurred involuntarily or mistakenly or otherwise without the consent of the person who has the privilege.

...

• [72] Broadly, if a party elects to disclose and rely on (by pleading or discovering the same) a document or documents within a category of privileged material, an opposing party is entitled to insist on all documentation within the same category being disclosed.

• [73] As Katz J explained in Capital + Merchant Finance Ltd v Perpetual Trust Ltd⁶ the rationale for the common law rule that is now captured in s 65 is that it would be unjust to allow a party to cherry pick, putting in such aspects of the documentation as assisted his, her or its case whilst seeking to maintain privilege in respect of any aspects that did not.

• [74] However, as is pointed out by the authors of Cross on Evidence, whilst fairness may be behind the rule, the legislation does not expressly invite the Courts to consider fairness as a criterion.⁷

⁶ Capital + Merchant Finance Ltd v Perpetual Trust Ltd [2015] NZHC 1233 at [29].

⁷ Mathew Downs (ed) Cross on Evidence (looselead ed, LexisNexis) at [EVA65.4]. See also Body Corporate No 191561 v Argent House Ltd [2008] NZHC 2099; (2008) 19 PRNZ 500 (HC) at [31]–[33], and Messenger v Stanaway Real Estate Ltd [2014] NZHC 2103 at [20].

• [75] In short it does not appear to me from the wording of s 65 that the Legislature was intending to confer a discretion on the courts in relation to whether or not a party that has done enough to waive privilege in one or more of the ways there referred to should be ordered to discover all documentation in the same category. If, in terms of the legislation, a party has elected to disclose documentation within a category, then the balance of the documents within that category must also be disclosed.

• [76] In this context, it is probably worth recording that the fundamental common law principle that only relevant evidence is admissible is captured in s 7 of the Evidence Act.

• [77] I have considered whether the category of documentation involved here, which I would limit to exchanges between the plaintiffs and EY Law as to the efficacy of the mechanism, is in truth relevant to any issue in the case.

• [78] Whilst the question of whether or not the structure was efficacious is certainly in issue, that will be a question of law for the Court, in respect of which there will no doubt be detailed evidence and submissions from counsel.

• [79] On one view, the opinion reached as to these issues by EY Law at the relevant time is neither here nor there, and will certainly not be influential. On that basis, it might be contended that the documentation in this category is irrelevant.

• [80] However, on balance it appears to me that the better view is that what EY Law advised the Brierley companies — correctly or otherwise — is relevant, as it forms part of the information that those companies had to hand when they elected to act. I have therefore concluded that this documentation is relevant and I will make the order sought by PwC accordingly.

Orders

• [81] I make the following orders:

(a) PwC is to conduct further searches of the Lotus Notes mailboxes for the period prior to 2011 using the terms set out in paragraph 1 of the
schedule to the plaintiffs’ interlocutory application dated 2 November 2021 (to the extent that such searches have not previously been run), save that for the email addresses listed in sub-paragraphs 1(cc) to 1(nn) of the schedule, PwC may search against those email addresses using additional search terms to limit the results (with such terms to be agreed between the parties);

(b) The Brierley companies’ applications relating to the Lotus Notes mailboxes post-2011 ([23]–[29] is dismissed;

(c) The Brierley companies’ applications relating to the iManage folders [30]–[35] is dismissed;

(d) The Brierley companies’ application relating to the Wellington shared drive ([36]–(37]) is dismissed;

(e) The Brierley companies’ application relating to the discovery of hard copy documentation ([38]–[42]) is dismissed;

(f) The Brierley companies’ application relating to further specific documents ([43]–[46]) is dismissed;

(g) PwC’s application relating to capital distributions/share acquisition documents ([47]–[48]) does not need to be dealt with;

(h) In relation to PwC’s application relating to the Manuka Health purchase ([49]–[58]), I order the Brierley companies to provide discovery of the sale and purchase agreement by which I mean that they are to file and serve an affidavit explaining what searches have been carried out in relation to it and if it cannot be located provide whatever information they have as to when it was last in their possession or control and its current whereabouts. This is to be done within 10 working days of the date of this judgment;
(i) PwC’s application relating to GL privatisation documentation ([59]-[66]) is dismissed;

(j) In relation to PwC’s application relating to the Brierley companies affidavits of documents ([67]–[68]), I order the Brierley companies to complete the review and file and serve any further affidavit of documents within 15 working days of the date of the judgment;

(k) In relation to PwC’s application relating to the EY Law documentation ([69]–[80]), I order the Brierley companies to discover exchanges between them and EY Law as to the efficacy of the mechanism as defined in their pleadings.

Costs

• [82] I expect counsel will be able to resolve costs. If they are not able to do so, they may file memoranda in the usual way. If it is necessary to do so, I will deal with costs on the papers.

Associate Judge Johnston

Solicitors:

Wynn Williams, Auckland for plaintiffs Bell Gully, Wellington for defendant