LOMBARD FINANCE & INVESTMENTS LIMITED V NISBET HC WN CIV 2006-485-2836

LOMBARD FINANCE & INVESTMENTS LIMITED V NISBET HC WN CIV 2006-485-2836 4 March 2008IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2006-485-2836BETWEEN LOMBARD FINANCE & INVESTMENTS LIMITED Plaintiff AND CRAIG GRANT SCOTT NISBET Defendant Hearing: 4 March 2008 Appearances: R. Gordon - Plaintiff C. Skagen - Defendant Judgment: 4 March 2008ORAL DECISION OF ASSOCIATE JUDGE D.I. GENDALLSolicitors: Buddle Findlay, Solicitors, PO Box 2694, Wellington E W Gartrell, Barrister & Solicitor, PO Box 5151, Wellington[1] Before the Court is an application by the Defendant for orders for discovery of certain documents from the plaintiff. [2] The application is brought in terms of paragraph 11(b) of a Minute I issued in this matter on 21 February 2008. The direction in that paragraph provided that if the defendant was of the view that the plaintiff had withheld relevant discoverable documents with respect to the quantum hearing in this matter which is shortly to take place, then an appropriate application was to be filed and served by 29 February 2008. [3] This application followed an earlier direction which I made at paragraph 11(a) of that 21 February 2008 Minute. That direction was that the plaintiff by 25 February 2008 was to provide to the defendant: a) A copy of the signed final brief of evidence of Warwick Graham Thorpe as to quantum together with any other evidence upon which the plaintiff intends to rely in the quantum hearing; and b) A copy of the bundle of documents prepared by the plaintiff mentioned in discussions before me. [4] At the hearing of the present discovery application this afternoon counsel confirmed that Mr Thorpe's brief of evidence and a copy of the bundle of documents for the quantum hearing was made available to the defendant by the date specified. [5] The present application for discovery orders by the defendant is wide- ranging. It repeats verbatim requests for discovery orders which were made in an earlier application for discovery filed on behalf of the defendant on 9 May 2007. [6] In addition, it seeks what are described as "Gaps in the bundle of documents provided which relate to the computer generated transaction ledger that is being used as evidence by the plaintiff or quantum of damages."[7] Having had an opportunity to consider the brief of evidence provided by Mr Thorpe together with the bundle of documents provided, I am satisfied that this is not a proper matter upon which a discovery order should be made at this point. [8] And in passing I note that this matter relates to a summary judgment application and as McGechan on Procedure at para. HR294.03 makes clear discovery is rarely ordered in ordinary cases where the fast track summary judgment procedure is utilised. [9] That said the defendant's discovery application is dismissed. [10] Costs are reserved. [11] My detailed reasons for reaching this decision will be provided to counsel it is hoped by tomorrow, 5 March 2008. [12] As noted in the terms of my Minute of 21 February 2008 the summary judgment quantum hearing scheduled for 2.15 pm on 18 March 2008 is confirmed.'Associate Judge D.I. Gendall'