HUNTER GRAIN LIMITED AND ANOR V RICHARD WILLIAM PRICE AND ORS HC TAU CIV-2008-470-192

HUNTER GRAIN LIMITED AND ANOR V RICHARD WILLIAM PRICE AND ORS HC TAU CIV-2008-470-192

The court held that the implied undertaking applied to the McKenzie catalogue and to the identified emails of 3 December 2007 and 7 January 2008 and that sending the 9 October 2007 email to third parties and disclosing the listed catalogue particulars was a breach; the action plan, released in error, was properly...

Source-derived case information.

Citation
openlaw-7b0c4501_c102_4ebd_b43c_3818dbef543a.pdf
Parties
First Plaintiff: Hunter Grain Limited; Second Plaintiff: Rossod Holdings Limited; First Defendant: Richard William Price; Second Defendant: Price Commodities Limited; Third Defendant: R W Price, T L Price and S W E Swap as trustees of a Price Family Trust
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 August 2010
Procedural Posture
Civil Litigation Commercial Dispute (high Court) / Review of Interlocutory Decision (application to Review Associate Judge's Orders on Strike Out and Leave to Use Discovered Documents)
Outcome
Application for review dismissed; Associate Judge Doogue's orders upheld; leave granted to use documents discovered in this proceeding in the related Swap proceeding subject to further directions
Legal Topics
Implied Undertaking Not to Use Discovered Documents, Use of Discovered Documents in Related Proceedings, Leave to Use Discovered Documents, Strike Out for Abuse of Process, Search and Seizure Orders and Cataloguing, Sanctions for Breach of Undertaking
Civil Procedure Discovery and Disclosure Equity and Fiduciary Duties Commercial Law Contempt of Court Search and Seizure (anton Piller) Implied Undertaking Not to Use Discovered Documents Use of Discovered Documents in Related Proceedings +4 more

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Parties

Hunter Grain Limited

First Plaintiff

Rossod Holdings Limited

Second Plaintiff

Richard William Price

First Defendant

Price Commodities Limited

Second Defendant

R W Price, T L Price and S W E Swap as trustees of a Price Family Trust

Third Defendant

Procedural Posture

Civil Litigation Commercial Dispute (high Court) / Review of Interlocutory Decision (application to Review Associate Judge's Orders on Strike Out and Leave to Use Discovered Documents)

Legal Issues

  1. 1 Whether publication/use of discovered material to third parties breached the implied undertaking and express undertaking
  2. 2 Whether the McKenzie catalogue and listed email summaries are subject to the implied undertaking
  3. 3 Whether the action plan was released in error and whether its use breached the undertaking

Ratio Decidendi

The court held that the implied undertaking applied to the McKenzie catalogue and to the identified emails of 3 December 2007 and 7 January 2008 and that sending the 9 October 2007 email to third parties and disclosing the listed catalogue particulars was a breach; the action plan, released in error, was properly treated by plaintiffs as a business record and its use did not breach the undertaking; the breaches were not deliberate or contumacious and strike out or stay would be disproportionate; given the special circumstances including misappropriation of the hard drive by Price and that the breaches did not materially cause the issue of the Swap proceedings, leave to use discovered...

Court Disposition

Application for review dismissed; Associate Judge Doogue's orders upheld; leave granted to use documents discovered in this proceeding in the related Swap proceeding subject to further directions

Orders

  • Review dismissed
  • Leave granted to the plaintiffs to use documents discovered in HC Tauranga CIV-2008-470-192 in the related Swap proceedings (HC Tauranga CIV-2008-470-837) subject to further hearing to establish protocol and resolve privilege and confidentiality issues