REXWYN HOLDINGS LIMITED V WRIGHTSON LIMITED HC TIM CIV-2005-476-301

REXWYN HOLDINGS LIMITED V WRIGHTSON LIMITED HC TIM CIV-2005-476-301 21 November 2005IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY CIV-2005-476-301BETWEEN REXWYN HOLDINGS LIMITED Plaintiff AND WRIGHTSON LIMITED Defendant Hearing: 21 November 2005 Appearances: Mr P. Whiteside for Plaintiff/Respondent Mr E. Cox for Defendant/Applicant Judgment: 21 November 2005 Reasons: 22 November 2005REASONS FOR JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN On Application by Defendant that the Plaintiff file further Particulars of its Claim[1] On 31 October 2005 the defendant filed a multi-faceted application seeking further discovery against the plaintiff, particular discovery against non-parties, and a request that the plaintiff file further particulars of its claim. [2] Before me only the application for further particulars required argument. Mr Cox advised that the non-party discovery applications against a Mr Hailes and the Official Assignee could be withdrawn because an accommodation had been reached with those non-parties. In addition, the application for non-party discovery against Livestock Improvement Corporation Limited ("LIC") was resolved between counsel. As they request, I make the following orders by consent: That LIC file and serve an affidavit:(a) Stating whether the documents listed in Schedule B (the LIC documents) are, or have been, in LIC's control, and if they are no longer in their control what became of them; (b) Disclosing the LIC herd code and participant code allocated by LIC to S.J. and J. Laing of Pebble Sidings Road, Oamaru ("the Laings") for the period 1999 – 2004; (c) Listing the cattle in the Laings and the Smits herd profile for the seasons 1999 – 2004 by identifying each animal by its LIC alpha numeric lifetime animal birth identification code. (d) Disclosing the date of transfer of any cattle in the Laing herd profile to the Smits' herd profile for the seasons 1999 – 2004. [3] Mr Cox and counsel for LIC have reached an agreement regarding payment of LIC's reasonable expenses in complying with the order. Mr Whiteside has advised that any extra costs incurred by LIC over and above the rate agreed to be paid by the defendant will be met by the plaintiff.Pleadings[4] Against the defendant the plaintiff claims that through the defendant's agency it purchased 218 dairy cows which it then leased to the Laings for a period of 12 months. The plaintiff claims the defendant organised and facilitated this lease. The plaintiff asserts that prior to 17 March 2001 the Laings engaged the defendant to act for them as agent in the sale of the dairy cows they possessed, and on 17 March the Laings entered into a contract for the forward sale and purchase of those dairy cows to another – now known as the Smits.[5] In paragraph 10 of its statement of claim the plaintiff pleads: "[10] The dairy cattle sold under that agreement included all of the cows, which remained at all times in the ownership of the plaintiff." [6] The plaintiff alleges, inter alia, because of the defendant's knowledge and actions throughout that they should have known that the cows sold by the Laings to the Smits included the plaintiff's cows. The plaintiff claims the defendant is liable in conversion and/or negligence. [7] The defendant, whilst acknowledging its role in the purchase of dairy cows by the plaintiff, and in the lease of those cows to the Laings, and in the sale of the cows from the Laings to the Smits, denies the forward sale included the plaintiff's cows, or if it did that the defendant neither knew, nor could be expected to know, the plaintiff's cows were includedApplication for Further Particulars[8] The defendant says the plaintiff's statement of claim does not give the defendant adequate particulars of "the cows" referred to in its statement of claim, and that such further particulars of "the cows" are necessary to allow the defendant fair notice of the cause of action, or the particulars required. [9] At the conclusion of the hearing before me I informed Mr Cox that the application would be refused.Reasons[10] The defendant submits it is implicit in both causes of action that the plaintiff is able to identify its property from that of others when it alleges the defendant has caused it loss in respect of that property. The defendant points to the fact that each cow has an identification number that is tracked by LIC through sale and purchase transactions. It says it needs from the plaintiff the LIC identification numbers so it can investigate the plaintiff's claim they were sold by the Laings to the Smits. Itdoes not accept the contention that the plaintiff cannot give the particulars sought. The defendant notes that the plaintiff's agreement to lease its cows to the Laings contained in schedules details of the LIC identification numbers. It follows that if the plaintiff asserts the Laings have sold its cows to the Smits that the plaintiff ought to be able to provide the LIC numbers of its cows allegedly sold in that transaction. [11] The defendant relies upon rules 108 and 185 in support of its application. [12] I do not consider there has been a breach of r.108. In my view, there has been a sufficient degree of particularisation to inform the defendant both to understand the issues raised and also to prepare its case in defence. [13] Further, and in the particular circumstances of this case, it is inappropriate to make any order under r.185. I accept Mr Whiteside's submission that as a matter of practicality the plaintiff cannot give the particulars sought. In an affidavit for the plaintiff Mr Wood stated: "The plaintiff cannot give any further particulars of the cows referred to in paragraph 10 of the plaintiff's statement of claim by identifying each animal by the LIC alpha numeric lifetime animal birth identification code. Those particulars relating to the cows sold by the defendant on behalf of the Laings under the agreement dated 17 March 2001 to the Smits can only be provided by the defendant, the Laings or the Smits." [14] The plaintiff was not a party to the transaction carried out by the defendant and therefore cannot give particulars of that transaction. [15] The defendant claims the further particulars requested will allow it to prepare properly, and will prevent the plaintiff "alternating the evidence it uses at trial". I do not accept the defendant is at risk to the extent that counsel submits. The plaintiff's lease documents identify the LIC details of each of the plaintiff's cows. It is highly improbable the plaintiff is going to claim that it owned cows other than those that have been identified in the lease documents. Further, impending discovery by LIC in relation to the cows sold to the Smits will likely determine whether any of the plaintiff's cows were sold by the Laings to the Smits. If none ofthe cows sold to the Smits carry the LIC numbers of cows the plaintiff owned then that will likely bring an end to the plaintiff's proceeding against the defendant. [16] What the defendant really seeks relates not to a matter of pleading, but to questions of fact. In the context of its application the defendant fails to distinguish between the issue of pleading and the issue of proof of facts. [17] The defendant knows the plaintiff does not have the LIC numbers of the cows sold to the Smits. Given the further discovery expected of LIC, and the possibility thereby of the provision of proof that none of the plaintiff's cows were sold to the Smits, the defendant cannot claim its position has been prejudiced by the lack of provision of LIC numbers from the plaintiff.Judgment[18] The application for an order for further particulars is refused.Costs[19] There is no reason why costs should not follow the event. The defendant is to pay the plaintiff's costs on a Category 2B basis.Other Matters[20] The defendant's application filed on 31 October 2005 also sought further discovery from the plaintiff. There was no argument before me concerning this application because the parties reached an agreement in respect of that aspect of the defendant's application. In fact, it appears prior to, or about the time of the defendant's application both sides agreed further discovery was due by them. In my view, costs should lie where they fall in relation to the defendant's claim against the plaintiff for further discovery. Solicitors Wynn Williams & Company, Christchurch for Plaintiff Gibson Sheat, Lower Hutt for Defendant