GILMER INVESTMENTS LTD v WILSON PARKING NEW ZEALAND LTD [2021] NZHC 1071

GILMER INVESTMENTS LTD v WILSON PARKING NEW ZEALAND LTD [2021] NZHC 1071 [13 May2021]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2020-404-2444[2021] NZHC 1071BETWEEN GILMER INVESTMENTS LTDApplicantAND WILSON PARKING NEW ZEALAND LTDRespondentHearing: 13 May 2021Counsel: A E Murray for ApplicantL M McKeown for RespondentJudgment: 13 May 2021JUDGMENT OF BREWER JThis judgment was delivered by me on 13 May 2021 at 4 pmpursuant to Rule 11.5 High Court Rules.Registrar/Deputy RegistrarSolicitors:DLA Piper (Auckland) for ApplicantDuncan Cotterill (Wellington) for RespondentIntroduction[1] The applicant ("Gilmer") applies for an order for particular discovery againstthe respondent ("Wilson") before Gilmer has commenced a proceeding againstWilson. The application is made pursuant to r 8.20 of the High Court Rules 2016which states:(1) This rule applies if it appears to a Judge that—(a) a person (the intending plaintiff) is or may be entitled toclaim in the court relief against another person (the intendeddefendant) but that it is impossible or impracticable for theintending plaintiff to formulate the intending plaintiff's claimwithout reference to 1 or more documents or a group ofdocuments; and(b) there are grounds to believe that the documents may be or mayhave been in the control of a person (the person) who may ormay not be the intended defendant.(2) The Judge may, on the application of the intending plaintiff madebefore any proceeding is brought, order the person—(a) to file an affidavit stating—(i) whether the documents are or have been in theperson's control; and(ii) if they have been but are no longer in the person'scontrol, the person's best knowledge and belief as towhen the documents ceased to be in the person'scontrol and who now has control of them; and(b) to serve the affidavit on the intending plaintiff; and(c) if the documents are in the person's control, to make thosedocuments available for inspection, in accordance with rule8.27, to the intending plaintiff.(3) An application under subclause (2) must be by interlocutoryapplication made on notice—(a) to the person; and(b) to the intended defendant.(4) The Judge may not make an order under this rule unless satisfied thatthe order is necessary at the time when the order is made.[2] Gilmer leases a vehicle parking building to Wilson. The rent is composed of aregular recurring sum plus a share of revenue if the revenue exceeds a point calculatedby a specified formula.[3] Gilmer considers that Wilson has breached the lease by failing to comply withprovisions designed to enable Gilmer to be assured that Wilson is calculating revenuecorrectly for the purpose of determining whether the rent should include a revenuecomponent.[4] Gilmer also submits that it has a report from KPMG which at least casts doubton Wilson's report of revenue in 2019 from casual parking. And there is an apparentnon-return of $0.50 card charges which Gilmer submits should be included in therevenue calculation.[5] Gilmer submits it has an entitlement, or may be entitled, to claim relief againstWilson. Gilmer submits it is impossible or impracticable for it to formulate its claimwithout reference to the documents it wishes to have discovered, and that it cannot getaccess to the documents otherwise because of Wilson's intransigence. It submits thereis no doubt that the documents may be or may have been in Wilson's control.[6] Gilmer submits also that I can be satisfied that the order sought is necessary atthis time.[7] The particular discovery sought by Gilmer is broad:1.1 That the respondent file and serve an affidavit of documents related toits parking operation at 5-11 Gilmer Terrace for the financial yearsended 30 June 2014, 2015, 2016, 2017, 2018, 2019 and 2020, asfollows:1.1.1 All sublease agreements relevant to the carpark at 5-11 GilmerTerrace, which is owned by the applicant and leased by therespondent.1.1.2 Bank deposit records showing the respondent's receipt ofsublease payments.1.1.3 Armourguard and Ezicom cash takings statements orremittance advice.1.1.4 Records of payments from the cash payment ticketingmachine.1.1.5 Bank deposit records showing the respondent's receipt ofArmourguard and Ezicom cash takings.1.1.6 Details of Wilson's reconciliation process in relation to cashpayment for Casual Parks.1.1.7 Records of bank card payments from the bank card paymentticketing machine.1.1.8 Bank deposit records showing the respondent's receipt ofbank card payments.1.1.9 Records showing the respondent's receipt of $0.50 transactionfees for bank card payments.1.1.10 Information as to how the respondent reconciles that paymentto the applicant's account, which may include process memosused in finance operations or provided to the internal orexternal auditors to understand the control environment.1.1.11 Parkmate payments statements or remittance advice(including detail of any deducted service fees).1.1.12 Bank deposit records showing the respondent's receipt ofParkmate payments.1.1.13 Any communication between Parkmate and the respondentabout payments relating to the carpark at the Premises,including regular reporting, reconciliations, or automatedrecords.1.1.14 Records showing the respondent's receipt of $0.50 transactionfees for Parkmate payments.1.1.15 Information as to how the respondent reconciles that paymentto the applicant's account, which may include process memosused in finance operations or provided to the internal orexternal auditors to understand the control environment.1.1.16 A detailed description of the respondent's processes forrecording and allocating Gross Revenue for Casual Parks toeach facility.1.1.17 The source documents and/or records that the respondent usesto compile its monthly vacancy counts for the period fromJuly 2014 to the date of the applicant's Application.1.1.18 A reconciliation of the respondent's Gross Revenue fromPermanent Parks and Casual Parks to its audited financialstatements, including a breakdown to the different paymentmethods.[8] Wilson contends that none of the prerequisites for an order under r 8.20 aremade out by Gilmer. Wilson particularly criticises Gilmer's characterisation of thedisclosure already made by Wilson. Wilson says that far from being intransigent it hasbeen particularly co-operative. Wilson submits there is no extant or probableentitlement to a claim and in its submissions goes into the sort of detail that would berequired for an application for summary judgment or strike out.Decision[9] I do not accept it is impossible or impracticable for Gilmer to formulate itsclaim without reference to one or more of the documents it seeks in pre-commencement discovery. Accordingly, I am not satisfied that the order is necessaryat this time.[10] On Gilmer's evidence, it can bring a proceeding for specific performance ofthe lease. That will trigger discovery rights.[11] On Gilmer's evidence, it can include an action that Wilson is in breach of thelease by under-reporting revenue. The KPMG report can be relied upon if Gilmerwishes to do so.[12] I accept that for such a claim quantum would not be able to be established pre-commencement. But it is not necessary that quantum be established pre-commencement. It is common for claims to be made seeking to establish liability withparticulars of quantum to be given post-discovery.[13] It is common, also, for statements of claim to be amended as discovery clarifiesthe evidential position.[14] Ms Murray, in the hearing before me, accepted that Gilmer's position is that ithas a claim against Wilson, that the claim is for breach of the lease in several respects,and that it can file a proceeding. But, she submits, Gilmer cannot particularise theclaim as the rules require and that is a foundation for the exercise of the r 8.20discretion.[15] I accept that "impossible or impracticable" means an "inability to plead theclaim in accordance with the requirements of the rules".1 And, of course, a statementof claim:2 must give sufficient particulars of time, place, amounts, names of persons,nature and dates of instruments, and other circumstances to inform the court1 Exchange Commerce Corporation Ltd v New Zealand News Ltd [1987] 2 NZLR 160.2 Rule 5.26(b).and the party or parties against whom relief is sought of the plaintiff's causeof action.[16] But, that does not mean a statement of claim must particularise pleadingsperfectly. Particulars are not pleadings, they are "illuminative" of pleadings.3 Asufficiency of illumination is the requirement. And, as I have said, a plaintiff can pleadthat further particulars will be given following discovery.[17] For these reasons, I decline the application.Costs[18] Wilson is entitled to costs. In the normal course, I would award them on a 2Bbasis. If either party disputes that 2B costs should be awarded, memoranda must befiled within 10 working days of the date of this judgment. In the absence ofmemoranda, the position will crystallise as costs on a 2B basis.________________________________Brewer J3 Ayers v LexisNexis NZ Ltd [2012] NZHC 3055, (2012) PRNZ 313.