ROSKRUGE v FERGUSON [2018] NZHC 1094

ROSKRUGE v FERGUSON [2018] NZHC 1094

The court ordered the second defendants to make further and better discovery of the identified trust and company documents and to file and serve further affidavits complying with Form G37 (detailing conscientious searches and inquiries) within 10 working days; a bare assertion of non-possession is insufficient to...

Source-derived case information.

Citation
[2018] NZHC 1094
Parties
Plaintiff/applicant: Alice Jane Roskruge; First Defendant/first Respondent: Alan Douglas Ferguson; Second Defendants/second Respondents: Alan Douglas Ferguson and John Norman Barratt-Boyes as trustees of the Onoto Family Trust; Third Defendants/third Respondents: Alan Douglas Ferguson and Neumegen & Neumegen Trustees Limited as trustees of the Lennox Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
18 May 2018
Procedural Posture
Civil – Constructive Trust / Property Dispute / Interlocutory Discovery Hearing (further and Better Discovery)
Outcome
Further and better discovery ordered against the second defendants; costs reserved.
Legal Topics
Constructive Trust, Discovery (further and Better Discovery), Affidavit of Documents (form G37), Trust Financial Disclosure, Tax Returns
Trusts Property Law Family Law Civil Procedure Constructive Trust Discovery (further and Better Discovery) Affidavit of Documents (form G37) Trust Financial Disclosure +1 more

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Parties

Alice Jane Roskruge

Plaintiff/applicant

Alan Douglas Ferguson

First Defendant/first Respondent

Alan Douglas Ferguson and John Norman Barratt-Boyes as trustees of the Onoto Family Trust

Second Defendants/second Respondents

Alan Douglas Ferguson and Neumegen & Neumegen Trustees Limited as trustees of the Lennox Family Trust

Third Defendants/third Respondents

Procedural Posture

Civil – Constructive Trust / Property Dispute / Interlocutory Discovery Hearing (further and Better Discovery)

Legal Issues

  1. 1 Whether the second defendants must produce further trust and company documents (financial statements, tax returns, ledger printouts)
  2. 2 Whether documents are relevant and therefore discoverable to the plaintiff's constructive trust claims and valuation issues
  3. 3 Whether defendants' statement that documents are not in their possession is determinative or whether they must file detailed affidavits describing searches undertaken

Ratio Decidendi

The court ordered the second defendants to make further and better discovery of the identified trust and company documents and to file and serve further affidavits complying with Form G37 (detailing conscientious searches and inquiries) within 10 working days; a bare assertion of non-possession is insufficient to discharge discovery obligations.

Court Disposition

Further and better discovery ordered against the second defendants; costs reserved.

Orders

  • Second defendants to make further and better discovery disclosing the documents specified in paragraph [2] of the judgment (Onoto Family Trust financial statements and tax returns; Applied Hearing Limited financial statements, tax returns and ledger printouts).
  • Second defendants to file and serve further affidavits generally in accordance with Form G37 (addressing the matters in para [5] of Form G37 and specifying steps taken to locate documents) within 10 working days of judgment.