K I DAVIS, T M SMART, T W MANCER V K J MANCER AND K A YOUNG AND C E CAULFIELD [2016] NZHC 2268

K I DAVIS, T M SMART, T W MANCER V K J MANCER AND K A YOUNG AND C E CAULFIELD [2016] NZHC 2268

The plaintiffs, as beneficiaries entitled by Family Court judgments, demonstrated that the documents sought are relevant and under the control of the first defendant and likely held by the solicitors; in the circumstances claims of litigation privilege do not prevail and discovery must be ordered with specified compliance and service directions.

Citation
[2016] NZHC 2268
Parties
First Plaintiff: Karleen Ita Davis; Second Plaintiff: Tanya Marie Smart; Third Plaintiff: Toni Williams Mancer; First Defendant (trustee/executor): Kerry John Mancer; Second Defendant (solicitor): Keith Allan Young; Second Defendant (solicitor): Carole Elizabeth Caulfield
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 September 2016
Procedural Posture
Civil (trusts/equity/derivative Action) / Interlocutory — Discovery Application Following Strike‑out Application
Outcome
Discovery ordered against the first and second defendants with specific compliance and service directions; costs awarded against the first defendant on a 2B basis; costs against the second defendants reserved.
Legal Topics
Derivative Action, Discovery, Legal Professional Privilege, Breach of Trust, Breach of Retainer, Negligence, Service of Orders
Trusts Equity Civil Procedure Professional Negligence Evidence (privilege) Derivative Action Discovery Legal Professional Privilege +4 more

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Parties

Karleen Ita Davis

First Plaintiff

Tanya Marie Smart

Second Plaintiff

Toni Williams Mancer

Third Plaintiff

Kerry John Mancer

First Defendant (trustee/executor)

Keith Allan Young

Second Defendant (solicitor)

Carole Elizabeth Caulfield

Second Defendant (solicitor)

Procedural Posture

Civil (trusts/equity/derivative Action) / Interlocutory — Discovery Application Following Strike‑out Application

Legal Issues

  1. 1 Whether beneficiaries are entitled to discovery of trustee/solicitor files to pursue a derivative action
  2. 2 Whether claims of legal professional privilege and litigation privilege prevent discovery in these circumstances
  3. 3 Whether the solicitor owed a duty to the plaintiffs giving rise to a cause of action

Ratio Decidendi

The plaintiffs, as beneficiaries entitled by Family Court judgments, demonstrated that the documents sought are relevant and under the control of the first defendant and likely held by the solicitors; in the circumstances claims of litigation privilege do not prevail and discovery must be ordered with specified compliance and service directions.

Court Disposition

Discovery ordered against the first and second defendants with specific compliance and service directions; costs awarded against the first defendant on a 2B basis; costs against the second defendants reserved.

Orders

  • All documentation listed in plaintiffs' discovery schedule to be made available to plaintiffs
  • First defendant to provide the schedule of documents within 21 days of service