GABRIEL SEBASTIAN ASH v MAHENDRA SINGH & ORS [2019] NZHC 2790

GABRIEL SEBASTIAN ASH v MAHENDRA SINGH & ORS [2019] NZHC 2790

Court held large portions of plaintiff's particulars requests were unnecessary because many contested matters were contextual or evidential and better addressed by discovery and evidence; however the rectification defence required particularisation (settlor's intention must be pleaded with particulars) and specific particulars were ordered; tailored further discovery was ordered (including requiring the third defendant to file a separate affidavit of documents for documents in her control), Xero-generated bank reconciliation records accepted in lieu of historical bank statements, and most interrogatories were upheld except where disproportionate or seeking privileged/irrelevant material;...

Citation
[2019] NZHC 2790
Parties
Plaintiff: Gabriel Sebastian Ash; First Defendant: Mahendra Singh; Second Defendant: Geoffrey Hugh Bourchier; Third Defendant: Darsan Singh
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 October 2019
Procedural Posture
Civil Trust Litigation (claims: Rectification, Breach of Fiduciary Duty, Removal of Trustees, Disclosure) / Interlocutory – Application for Particulars, Further Discovery and Interrogatories (judgment Delivered)
Outcome
Application partly granted and partly dismissed: ordered specific particulars, ordered tailored further discovery (including separate affidavit by third defendant), accepted limited substitution of Xero records for bank statements, and ordered defendants to answer most interrogatories; otherwise plaintiff's...
Legal Topics
Rectification of Trust Deed, Breach of Fiduciary Duty, Removal of Trustees, Discovery and Tailored Disclosure, Particulars and Pleadings, Interrogatories and Objections, Trust Accounting and Insolvency, Disclosure Obligations of Trustees (erceg)
Trusts Equity Civil Procedure Evidence Family Law Rectification of Trust Deed Breach of Fiduciary Duty Removal of Trustees +5 more

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Parties

Gabriel Sebastian Ash

Plaintiff

Mahendra Singh

First Defendant

Geoffrey Hugh Bourchier

Second Defendant

Darsan Singh

Third Defendant

Procedural Posture

Civil Trust Litigation (claims: Rectification, Breach of Fiduciary Duty, Removal of Trustees, Disclosure) / Interlocutory – Application for Particulars, Further Discovery and Interrogatories (judgment Delivered)

Legal Issues

  1. 1 Whether defendants' statement of defence required particularisation, especially rectification defence
  2. 2 Whether further tailored discovery should be ordered given alleged loss/destruction of loan documents
  3. 3 Whether interrogatories served by plaintiff are oppressive or must be answered and scope of permissible interrogatories

Ratio Decidendi

Court held large portions of plaintiff's particulars requests were unnecessary because many contested matters were contextual or evidential and better addressed by discovery and evidence; however the rectification defence required particularisation (settlor's intention must be pleaded with particulars) and specific particulars were ordered; tailored further discovery was ordered (including requiring the third defendant to file a separate affidavit of documents for documents in her control), Xero-generated bank reconciliation records accepted in lieu of historical bank statements, and most interrogatories were upheld except where disproportionate or seeking privileged/irrelevant material;...

Court Disposition

Application partly granted and partly dismissed: ordered specific particulars, ordered tailored further discovery (including separate affidavit by third defendant), accepted limited substitution of Xero records for bank statements, and ordered defendants to answer most interrogatories; otherwise plaintiff's...

Orders

  • Defendants to provide the specific particulars listed in the judgment by 29 November 2019 (including particulars as to: contributions by third defendant, a balance sheet and valuation basis, details of communications and reporting re liabilities and specific loans, repayments by Property Purchase and Sale Ltd,...
  • Defendants to file and serve further tailored affidavits of documents disclosing all discoverable documents within their control (excluding documents about their searches for documents) by 20 December 2019 and provide electronic copies