MINISTER OF EDUCATION & ORS v HIGGS CONSTRUCTION LTD & ORS [2016] NZHC 1766 (Second Defendant’s application for further discovery)

MINISTER OF EDUCATION & ORS v HIGGS CONSTRUCTION LTD & ORS [2016] NZHC 1766 (Second Defendant’s application for further discovery)

The plaintiffs relied on communications from their advisors for the substance of the remediation quantum in Schedule 1 and therefore must produce those parts of advisor reports/communications that substantiate the figures in the schedule; privilege was not waived for other underlying litigation‑dominant material (instructions, internal calculations) and those need not be produced; plaintiffs' assertion that annual property plans do not exist is accepted so no order; letters of instruction to Prendos are privileged and not discoverable.

Citation
[2016] NZHC 1766
Parties
First Plaintiff: MINISTER OF EDUCATION; Second Plaintiff: SECRETARY FOR EDUCATION; Third Plaintiff: BOARD OF TRUSTEES OF ARANUI HIGH SCHOOL; First Defendant (discontinued): HAWKINS CONSTRUCTION NORTHISLAND LIMITED; Second Defendant: HIGGS CONSTRUCTION LIMITED; Third Defendant: IAN KRAUSE ARCHITECTS LIMITED; Fourth Defendant (discontinued): PAUL FRANCIS SAVAGE; First Third Party: CHRISTCHURCH CITY COUNCIL
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 August 2016
Procedural Posture
Civil Building Defect Claim / Application for Further Discovery
Outcome
Application granted in part and dismissed in part
Legal Topics
Discovery, Legal Professional Privilege, Waiver of Privilege, Assessment of Damages, Expert Reports
Civil Procedure Evidence Construction Law Discovery Legal Professional Privilege Waiver of Privilege Assessment of Damages Expert Reports

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Parties

MINISTER OF EDUCATION

First Plaintiff

SECRETARY FOR EDUCATION

Second Plaintiff

BOARD OF TRUSTEES OF ARANUI HIGH SCHOOL

Third Plaintiff

HAWKINS CONSTRUCTION NORTHISLAND LIMITED

First Defendant (discontinued)

HIGGS CONSTRUCTION LIMITED

Second Defendant

IAN KRAUSE ARCHITECTS LIMITED

Third Defendant

PAUL FRANCIS SAVAGE

Fourth Defendant (discontinued)

CHRISTCHURCH CITY COUNCIL

First Third Party

Procedural Posture

Civil Building Defect Claim / Application for Further Discovery

Legal Issues

  1. 1 Whether plaintiffs must discover underlying documents supporting the remediation cost schedule
  2. 2 Whether privilege in communications and expert material has been waived under s65 Evidence Act 2006
  3. 3 Discoverability of annual property plans required by the POD and Education Act 1999

Ratio Decidendi

The plaintiffs relied on communications from their advisors for the substance of the remediation quantum in Schedule 1 and therefore must produce those parts of advisor reports/communications that substantiate the figures in the schedule; privilege was not waived for other underlying litigation‑dominant material (instructions, internal calculations) and those need not be produced; plaintiffs' assertion that annual property plans do not exist is accepted so no order; letters of instruction to Prendos are privileged and not discoverable.

Court Disposition

Application granted in part and dismissed in part

Orders

  • Plaintiffs must produce communications/reports from their advisors to the extent they substantiate the figures in the columns of Schedule 1 to the second amended statement of claim, subject to redaction of material beyond that scope
  • Application for discovery of annual property plans dismissed on plaintiffs' evidence that no such plans have been retained