STRACK & WMC TRUSTEE LTD v GREY (Privilege) [2016] NZHC 1980

STRACK & WMC TRUSTEE LTD v GREY (Privilege) [2016] NZHC 1980

Documents D102–D105 (dated 27 February 2014) were prepared for the dominant purpose of preparing for an apprehended proceeding and are privileged under s56 Evidence Act 2006; the handwritten file note dated 26 February 2014 is not privileged because it records routine instructions about cancelling the contract and contains no indication that a proceeding was apprehended, and s56 requires an apprehended proceeding, not a mere possibility.

Citation
[2016] NZHC 1980
Parties
Plaintiff (vendor): Matthew Francis Strack; Plaintiff (vendor): Tracey Leigh Strack; Plaintiff (vendor): WMC Trustee Limited; Defendant (purchaser): David Harvey Grey
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 August 2016
Procedural Posture
Contractual Remedies Act 1979 Dispute Over Sale and Cancellation of Real Estate / Interlocutory Discovery Hearing on Privilege (pre Trial)
Outcome
Application partly allowed: four documents found privileged, one document ordered discovered; costs to lie where they fall.
Legal Topics
Litigation Privilege, Preparatory Materials Privilege (s56 Evidence Act 2006), Discovery, Repudiation, Contract Cancellation, Damages on Resale
Evidence Civil Procedure Contract Law Property Law Privilege Litigation Privilege Preparatory Materials Privilege (s56 Evidence Act 2006) Discovery +3 more

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Parties

Matthew Francis Strack

Plaintiff (vendor)

Tracey Leigh Strack

Plaintiff (vendor)

WMC Trustee Limited

Plaintiff (vendor)

David Harvey Grey

Defendant (purchaser)

Procedural Posture

Contractual Remedies Act 1979 Dispute Over Sale and Cancellation of Real Estate / Interlocutory Discovery Hearing on Privilege (pre Trial)

Legal Issues

  1. 1 Whether five documents are privileged under s56 Evidence Act 2006
  2. 2 Whether communications were made for the dominant purpose of preparing for an apprehended proceeding
  3. 3 Whether a handwritten file note dated 26 February 2014 attracts privilege

Ratio Decidendi

Documents D102–D105 (dated 27 February 2014) were prepared for the dominant purpose of preparing for an apprehended proceeding and are privileged under s56 Evidence Act 2006; the handwritten file note dated 26 February 2014 is not privileged because it records routine instructions about cancelling the contract and contains no indication that a proceeding was apprehended, and s56 requires an apprehended proceeding, not a mere possibility.

Court Disposition

Application partly allowed: four documents found privileged, one document ordered discovered; costs to lie where they fall.

Orders

  • Documents D102, D103, D104 and D105 are subject to privilege under s56 Evidence Act 2006
  • Document D101 is not privileged and must be produced/discovered