IVAN KALMAN NAGEL AND GRAHAM JOHN DAVY AS TRUSTEES OF THE NAGEL FAMILY TRUST V METROWATER LTD HC AK CIV 2008-404-006757

IVAN KALMAN NAGEL AND GRAHAM JOHN DAVY AS TRUSTEES OF THE NAGEL FAMILY TRUST V METROWATER LTD HC AK CIV 2008-404-006757

Application dismissed. Although evidence pointed to the existence of a negligence claim and loss was established, pre-commencement discovery was not justified because the intended plaintiff could formulate a draft claim and the documents sought went beyond what is necessary to commence proceedings; r 8.25 is limited to exceptional cases where it is impossible or impracticable to plead a claim, and particulars can be sought after proceedings are issued.

Citation
openlaw-d16da8f8_7a39_4cb5_a8eb_471eeef17843.pdf
Parties
Intended Plaintiff: Ivan Kalman Nagel and Graham John Davy as Trustees of the Nagel Family Trust; Intended Defendant: Metrowater Ltd
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 March 2009
Procedural Posture
Negligence Claim With Pre Commencement Discovery Application / Application Under High Court Rules R 8.25 (pre Commencement)
Outcome
Application for pre-commencement discovery dismissed
Legal Topics
Pre Commencement Discovery, Duty of Care, Breach of Duty, Causation, Particulars of Claim, High Court Rules R 8.25
Civil Procedure Tort Negligence Evidence/discovery Pre Commencement Discovery Duty of Care Breach of Duty Causation +2 more

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Parties

Ivan Kalman Nagel and Graham John Davy as Trustees of the Nagel Family Trust

Intended Plaintiff

Metrowater Ltd

Intended Defendant

Procedural Posture

Negligence Claim With Pre Commencement Discovery Application / Application Under High Court Rules R 8.25 (pre Commencement)

Legal Issues

  1. 1 Whether pre-commencement discovery under r 8.25 should be granted
  2. 2 Whether the intended plaintiff has shown a real probability of a cause of action
  3. 3 Whether inability to plead exact particulars justifies pre-commencement discovery

Ratio Decidendi

Application dismissed. Although evidence pointed to the existence of a negligence claim and loss was established, pre-commencement discovery was not justified because the intended plaintiff could formulate a draft claim and the documents sought went beyond what is necessary to commence proceedings; r 8.25 is limited to exceptional cases where it is impossible or impracticable to plead a claim, and particulars can be sought after proceedings are issued.

Court Disposition

Application for pre-commencement discovery dismissed

Orders

  • Application for pre-commencement discovery dismissed
  • Costs awarded to intended defendant assessed on a category 2B basis