J R LYNDS AND ANOR V FITZHERBERT ROWE HC PMN CIV-2007-454-413

J R LYNDS AND ANOR V FITZHERBERT ROWE HC PMN CIV-2007-454-413

The Court held the plaintiffs' pleaded quantum was insufficiently particularised under rr 5.26 and 5.32 because it omitted material particulars (dates, payer/payee, loan identification, interest bases and any allowance for stallion income) and ordered detailed further particulars within 10 working days; separately, on the privilege point the Court was not satisfied on the evidence that the documents were privileged or that a personal representative with a justifiable interest had established privilege, and therefore set aside the claims to privilege.

Citation
openlaw-d18c47ad_a45d_434e_84ad_ce67560479b9.pdf
Parties
First Plaintiff: J R Lynds; Second Plaintiff: Newbury Racing & Breeding Limited; Defendant: Fitzherbert Rowe
Court
High Court
Jurisdiction
New Zealand
Judgment Date
3 February 2011
Procedural Posture
Civil Breach of Fiduciary Duty and Equitable Fraud / Interlocutory Hearing on Applications for Further Particulars and to Set Aside Privilege (applications Heard 25 Jan 2011)
Outcome
Defendant's application for further particulars largely granted; plaintiffs' application to set aside claims to privilege succeeded.
Legal Topics
Particulars of Claim, Litigation Privilege, Solicitor Client Privilege, Waiver of Privilege, Discovery, Quantum of Damages, Interest Calculation
Equity Civil Procedure Evidence Fiduciary Law Trusts Particulars of Claim Litigation Privilege Solicitor Client Privilege +4 more

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Parties

J R Lynds

First Plaintiff

Newbury Racing & Breeding Limited

Second Plaintiff

Fitzherbert Rowe

Defendant

Procedural Posture

Civil Breach of Fiduciary Duty and Equitable Fraud / Interlocutory Hearing on Applications for Further Particulars and to Set Aside Privilege (applications Heard 25 Jan 2011)

Legal Issues

  1. 1 Whether the plaintiffs' statement of claim sufficiently particularises quantum under High Court Rules rr 5.26 and 5.32
  2. 2 Whether the defendant is entitled to detailed particulars of loans, repayments, payers/payees, dates, interest and stallion income to calculate net losses
  3. 3 Whether documents held by a third party are privileged and whether privilege was waived by disclosure

Ratio Decidendi

The Court held the plaintiffs' pleaded quantum was insufficiently particularised under rr 5.26 and 5.32 because it omitted material particulars (dates, payer/payee, loan identification, interest bases and any allowance for stallion income) and ordered detailed further particulars within 10 working days; separately, on the privilege point the Court was not satisfied on the evidence that the documents were privileged or that a personal representative with a justifiable interest had established privilege, and therefore set aside the claims to privilege.

Court Disposition

Defendant's application for further particulars largely granted; plaintiffs' application to set aside claims to privilege succeeded.

Orders

  • Plaintiffs to provide further particulars of quantum within 10 working days as set out in the judgment, including: details of bank accounts (name of account holder from which repayments originated; name of account holder to whom repayments were made; period over which repayments were made) for paragraph 25.1 of...
  • Identification of 'new loans' referred to at paragraph 25.2, with payer/payee and period information