REA AND LEONARD AND ANOR V RUSSELL AND ANOR HC AK CIV-2004-404-7138

REA AND LEONARD AND ANOR V RUSSELL AND ANOR HC AK CIV-2004-404-7138

Plaintiffs must first elect within 14 days whether to reject or accept the Nathu Jivan proof of debt; if rejected the discovery application for the deed and briefs is dismissed without prejudice; if treated as valid the court will not order disclosure of the briefs because they are protected by litigation privilege or equivalent confidentiality and will not be produced absent compelling grounds.

Citation
openlaw-a8a06fb5_451d_4ec6_8324_47483e69f0b7.pdf
Parties
First Plaintiffs: Gerald Stanley Rea and John Maurice Leonard Insolvency Practitioners of Auckland and Joint Liquidators of Aspac Distributors Limited (In Liquidation); Second Plaintiffs: Gerald Stanley Rea and John Maurice Leonard Insolvency Practitioners and Joint Liquidators of Asgro Limited (In Liquidation); First Defendant: Graham Owen Russell; Second Defendant: Helen Russell
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 April 2007
Procedural Posture
Civil Insolvency/company Law / Interim Judgment on Discovery Application (directions and Reserved Judgment)
Outcome
Interim judgment: plaintiffs directed to elect on Nathu Jivan claim; discovery of deed and briefs conditional on that election; briefs held protected and not to be disclosed absent exceptional justification; no order as to costs.
Legal Topics
Discovery, Further and Better Particulars, Proof of Debt, Rejection of Claim, Deed of Settlement, Litigation Privilege, Confidentiality, Directors' Duties
Insolvency Company Law Civil Procedure Evidence Privileged Materials Discovery Further and Better Particulars Proof of Debt +5 more

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Parties

Gerald Stanley Rea and John Maurice Leonard Insolvency Practitioners of Auckland and Joint Liquidators of Aspac Distributors Limited (In Liquidation)

First Plaintiffs

Gerald Stanley Rea and John Maurice Leonard Insolvency Practitioners and Joint Liquidators of Asgro Limited (In Liquidation)

Second Plaintiffs

Graham Owen Russell

First Defendant

Helen Russell

Second Defendant

Procedural Posture

Civil Insolvency/company Law / Interim Judgment on Discovery Application (directions and Reserved Judgment)

Legal Issues

  1. 1 Whether the deed of settlement and briefs of evidence in third‑party proceedings (Nathu Jivan) must be discovered
  2. 2 What is the status of the Nathu Jivan proof of debt and whether the liquidator has rejected it under s 304(4)
  3. 3 Whether briefs of evidence are protected by litigation privilege/confidentiality/privacy and therefore not discoverable

Ratio Decidendi

Plaintiffs must first elect within 14 days whether to reject or accept the Nathu Jivan proof of debt; if rejected the discovery application for the deed and briefs is dismissed without prejudice; if treated as valid the court will not order disclosure of the briefs because they are protected by litigation privilege or equivalent confidentiality and will not be produced absent compelling grounds.

Court Disposition

Interim judgment: plaintiffs directed to elect on Nathu Jivan claim; discovery of deed and briefs conditional on that election; briefs held protected and not to be disclosed absent exceptional justification; no order as to costs.

Orders

  • Plaintiffs to notify the Court within 14 days whether they elect to reject the Nathu Jivan proof of debt
  • If plaintiffs reject the Nathu Jivan claim the application for discovery of the deed of settlement and briefs of evidence is dismissed without prejudice to further application if the rejection is challenged