FUTURE PLAN (NZ) LTD v McLEAN FINANCIAL PLANNING LTD [2014] NZHC 515

FUTURE PLAN (NZ) LTD v McLEAN FINANCIAL PLANNING LTD [2014] NZHC 515

The court held that Future Plan's financial statements for years ended 31 March 2011, 2012 and 2013 are relevant and must be disclosed because quantification of claimed lost income requires assessment of whether lost revenue was mitigated by cost savings and overheads; financial statements for year ended 31 March 2010 were not shown to be relevant. The court denied broad orders for entire client lists, limiting discovery to transfer documents (if any) evidencing transfers from Future Wealth to Future Plan between August 2009 and April 2013. Requests for documents evidencing sales/transfers to FPNZ entities were refused because defendants failed to show relevance prior to May 2009...

Citation
[2014] NZHC 515
Parties
First Plaintiff: Future Plan (NZ) Limited; Second Plaintiff: Future Wealth Management Limited; Third Plaintiff: Peter Reginald Daymond; First Defendant: McLean Financial Planning Limited; Second Defendant: John Graham McLean
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 March 2014
Procedural Posture
Civil Discovery/application for Particular Discovery / Application Under R 8.19 High Court Rules (pre‑trial)
Outcome
Application partly granted in part and dismissed in part: particular discovery ordered in respect of specified financial statements and transfer documents; other categories refused.
Legal Topics
Particular Discovery, Standard Discovery (r 8.7), Breach of Adviser Agreement, Breach of Confidence, Director's Duties, Misleading and Deceptive Conduct, Quantification of Damages, First Right of Refusal
Contract Company Law Equity Procedural Law Consumer Law (fair Trading) Confidentiality/disclosure Particular Discovery Standard Discovery (r 8.7) +6 more

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Parties

Future Plan (NZ) Limited

First Plaintiff

Future Wealth Management Limited

Second Plaintiff

Peter Reginald Daymond

Third Plaintiff

McLean Financial Planning Limited

First Defendant

John Graham McLean

Second Defendant

Procedural Posture

Civil Discovery/application for Particular Discovery / Application Under R 8.19 High Court Rules (pre‑trial)

Legal Issues

  1. 1 whether documents sought are relevant under r 8.7 and r 8.19
  2. 2 whether Future Plan financial statements for years 2010‑2013 are discoverable
  3. 3 whether client lists as at Aug 2009 and Apr 2013 are discoverable

Ratio Decidendi

The court held that Future Plan's financial statements for years ended 31 March 2011, 2012 and 2013 are relevant and must be disclosed because quantification of claimed lost income requires assessment of whether lost revenue was mitigated by cost savings and overheads; financial statements for year ended 31 March 2010 were not shown to be relevant. The court denied broad orders for entire client lists, limiting discovery to transfer documents (if any) evidencing transfers from Future Wealth to Future Plan between August 2009 and April 2013. Requests for documents evidencing sales/transfers to FPNZ entities were refused because defendants failed to show relevance prior to May 2009...

Court Disposition

Application partly granted in part and dismissed in part: particular discovery ordered in respect of specified financial statements and transfer documents; other categories refused.

Orders

  • Plaintiffs to file and serve an affidavit under r 8.19 providing particular discovery of Future Plan's financial statements for years ended 31 March 2011, 31 March 2012 and 31 March 2013
  • Disclosure of those Future Plan financial statements is initially restricted to defendants' counsel Mr Hooker and to one chartered accountant retained for the defendants, on provision of written undertakings by both that they will not divulge contents to any person (other than to each other) without leave of the Court