BODY RADIANCE LTD V HETARAKA HC AK CIV 2005-404-7285

BODY RADIANCE LTD V HETARAKA HC AK CIV 2005-404-7285

The Court was satisfied there were grounds to believe relevant financial statements, tax returns and solicitors' file documents existed and had not been disclosed; those documents for the years ending 31 March 2003 and 31 March 2004 and solicitors' file materials relating to the sale and lease were relevant to the valuation/misrepresentation issue and an order under r300 was necessary, so discovery was ordered limited to those documents with reservation for further discovery on accountant affidavit.

Citation
openlaw-631c2594_5852_49c0_9daa_7dcaa94a5391.pdf
Parties
Plaintiff and Counterclaim Defendant: Body Radiance Limited; Defendant and Counterclaim Plaintiff: Melissa Elizabeth Hetaraka; Counterclaim Defendant: Deborah Phyllis Docherty
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 January 2007
Procedural Posture
Civil – Sale of Business Dispute; Proceedings Under Contractual Remedies Act 1979, Credit Contracts Act 1981 and Fair Trading Act 1986 / Application for Particular Discovery Under R300 High Court Rules (pre Trial Disclosure)
Outcome
Application for particular discovery granted in part and reserved in part
Legal Topics
Misrepresentation, Discovery (r300), Valuation of Business, Solicitor File Disclosure, GST and Income Tax Returns
Contract Law Consumer Protection Law Company Law Tax Law Civil Procedure Property Law Misrepresentation Discovery (r300) +3 more

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Parties

Body Radiance Limited

Plaintiff and Counterclaim Defendant

Melissa Elizabeth Hetaraka

Defendant and Counterclaim Plaintiff

Deborah Phyllis Docherty

Counterclaim Defendant

Procedural Posture

Civil – Sale of Business Dispute; Proceedings Under Contractual Remedies Act 1979, Credit Contracts Act 1981 and Fair Trading Act 1986 / Application for Particular Discovery Under R300 High Court Rules (pre Trial Disclosure)

Legal Issues

  1. 1 Whether there are grounds to believe the defendants have not discovered documents relevant to the valuation/misrepresentation claim
  2. 2 Whether the documents sought are relevant to issues pleaded (value of business at date of sale)
  3. 3 Whether an order for particular discovery under r300 is necessary at this stage

Ratio Decidendi

The Court was satisfied there were grounds to believe relevant financial statements, tax returns and solicitors' file documents existed and had not been disclosed; those documents for the years ending 31 March 2003 and 31 March 2004 and solicitors' file materials relating to the sale and lease were relevant to the valuation/misrepresentation issue and an order under r300 was necessary, so discovery was ordered limited to those documents with reservation for further discovery on accountant affidavit.

Court Disposition

Application for particular discovery granted in part and reserved in part

Orders

  • Order under r300 that Body Radiance Limited and Ms Docherty file and serve an affidavit stating whether and where the following documents are or have been in their control: financial statements of Body Radiance Limited for the years ending 31 March 2003 and 31 March 2004; income tax returns for the years ending 31...
  • Order reserving application in relation to any further financial statements or income tax or GST returns and to other business records; leave to bring application back on no less than seven days notice with filing of an affidavit from an investigating accountant supporting wider discovery