MCCABE & ORS v THISTLE FARMS LIMITED & ORS [2016] NZHC 456

MCCABE & ORS v THISTLE FARMS LIMITED & ORS [2016] NZHC 456

The application was in substance a late challenge to an Associate Judge's discovery orders and no adequate reason existed to exercise residual discretion to allow review out of time; alternatively, as an application to vary under r 8.17 the defendants failed to show compliance revealed a need for variation or a change of circumstances justifying reconsideration. Tailored discovery must be confined to documents relevant to pleaded issues and defendants must identify specific documents necessary to defend disputed causes of action. The application was dismissed and plaintiffs were directed to file an affidavit of documents and costs material within specified timeframes.

Citation
[2016] NZHC 456
Parties
First Plaintiff: Bruce McCabe; First Plaintiff: Ivan McCabe; Second Plaintiff: Thistle Farms Limited; First Defendant: Robert McCabe; Second Defendant: Irene Misiepo; Third Defendant: Neil McCabe; Fourth Defendant: Heather Pomfrett; Fifth Defendant: Webb Ross Johnson Trustees
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 March 2016
Procedural Posture
Civil (trusts and Company Law) / Interlocutory Application to Vary Discovery Orders
Outcome
Application dismissed.
Legal Topics
Breach of Trust, Disputed Share Transfers, Tailored Discovery, Variation of Discovery Order, Standing, Costs (indemnity/increased)
Trusts Company Law Civil Procedure Equity Disclosure/discovery Breach of Trust Disputed Share Transfers Tailored Discovery +3 more

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Parties

Bruce McCabe

First Plaintiff

Ivan McCabe

First Plaintiff

Thistle Farms Limited

Second Plaintiff

Robert McCabe

First Defendant

Irene Misiepo

Second Defendant

Neil McCabe

Third Defendant

Heather Pomfrett

Fourth Defendant

Webb Ross Johnson Trustees

Fifth Defendant

Procedural Posture

Civil (trusts and Company Law) / Interlocutory Application to Vary Discovery Orders

Legal Issues

  1. 1 Whether the application was a time‑barred challenge to Associate Judge's discovery orders
  2. 2 Whether the Court should exercise residual discretion to allow review out of time
  3. 3 Whether r 8.17 justified variation of the tailored discovery orders

Ratio Decidendi

The application was in substance a late challenge to an Associate Judge's discovery orders and no adequate reason existed to exercise residual discretion to allow review out of time; alternatively, as an application to vary under r 8.17 the defendants failed to show compliance revealed a need for variation or a change of circumstances justifying reconsideration. Tailored discovery must be confined to documents relevant to pleaded issues and defendants must identify specific documents necessary to defend disputed causes of action. The application was dismissed and plaintiffs were directed to file an affidavit of documents and costs material within specified timeframes.

Court Disposition

Application dismissed.

Orders

  • Application to vary discovery dismissed.
  • Plaintiffs to file and serve their affidavit of documents pursuant to r 8.15 (and address r 8.16/listing protocol issues) within 10 working days of decision.