O’BRIEN v PARKINSON & ORS [2021] NZHC 3161

O’BRIEN v PARKINSON & ORS [2021] NZHC 3161

The Court found a prima facie case that certain documents were prepared as part of a scheme to conceal relationship property and intended to defeat Ms O'Brien's interests; accordingly privilege was set aside in respect of four specific documents that were meaningfully linked to the alleged dishonest purpose, but not for other documents; the application for further discovery was dismissed as without merit and untimely.

Citation
[2021] NZHC 3161
Parties
First Plaintiff: LOUISA JANE O'BRIEN on behalf of GENERAL DYNAMICS CORPORATION LIMITED; Second Plaintiff / First Defendant (in Related Proceedings): LOUISA JANE O'BRIEN; First Defendant / Plaintiff (in Related Proceedings): KEVIN PARKINSON; Second Defendant / Fourth Defendant (in Related Proceedings): KEVIN PARKINSON as trustee of KEVIN PARKINSON FAMILY TRUST; Third Defendant / Sixth Defendant (in Related Proceedings): ANNA VALERIENA KEDRINSKAIA; Third Defendant / Sixth Defendant (in Related Proceedings): LISTON TRUSTEE SERVICES LIMITED; Second Defendant (in Related Proceedings): GENERAL DYNAMICS LIMITED; Third Defendant (in Related Proceedings): KEA GNSS LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 November 2021
Procedural Posture
Interlocutory Applications Concerning Challenge to Solicitor‑client Privilege Under Evidence Act S67 and Discovery in Relationship Property and Shareholder Derivative Proceedings / Interim Judgment on Application to Disallow Privilege and Application for Further Discovery
Outcome
Application to disallow privilege granted in part; privilege set aside for four identified documents; application for further discovery dismissed; no order as to costs
Legal Topics
Solicitor‑client Privilege, Dishonest Purpose Exception, Discovery and Disclosure, Shareholder Derivative Action, Fiduciary Breach, Resulting Trust, Relationship Property Tracing
Evidence Act 2006 Companies Act 1993 Property (relationships) Act 1976 Trusts Law Civil Procedure (high Court Rules) Solicitor‑client Privilege Dishonest Purpose Exception Discovery and Disclosure +4 more

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Parties

LOUISA JANE O'BRIEN on behalf of GENERAL DYNAMICS CORPORATION LIMITED

First Plaintiff

LOUISA JANE O'BRIEN

Second Plaintiff / First Defendant (in Related Proceedings)

KEVIN PARKINSON

First Defendant / Plaintiff (in Related Proceedings)

KEVIN PARKINSON as trustee of KEVIN PARKINSON FAMILY TRUST

Second Defendant / Fourth Defendant (in Related Proceedings)

ANNA VALERIENA KEDRINSKAIA

Third Defendant / Sixth Defendant (in Related Proceedings)

LISTON TRUSTEE SERVICES LIMITED

Third Defendant / Sixth Defendant (in Related Proceedings)

GENERAL DYNAMICS LIMITED

Second Defendant (in Related Proceedings)

KEA GNSS LIMITED

Third Defendant (in Related Proceedings)

Procedural Posture

Interlocutory Applications Concerning Challenge to Solicitor‑client Privilege Under Evidence Act S67 and Discovery in Relationship Property and Shareholder Derivative Proceedings / Interim Judgment on Application to Disallow Privilege and Application for Further Discovery

Legal Issues

  1. 1 Whether a prima facie case of dishonest purpose is established under s 67(1) Evidence Act such that solicitor‑client privilege is disallowed for specified documents
  2. 2 Whether the contested communications/documents formed part of the instrumentation of the dishonest purpose
  3. 3 Whether further and better discovery orders against Ms O'Brien should be made

Ratio Decidendi

The Court found a prima facie case that certain documents were prepared as part of a scheme to conceal relationship property and intended to defeat Ms O'Brien's interests; accordingly privilege was set aside in respect of four specific documents that were meaningfully linked to the alleged dishonest purpose, but not for other documents; the application for further discovery was dismissed as without merit and untimely.

Court Disposition

Application to disallow privilege granted in part; privilege set aside for four identified documents; application for further discovery dismissed; no order as to costs

Orders

  • Privilege set aside in respect of four documents on Barter & Co files: (a) unsigned agreement for sale and purchase in names "Kevin Parkinson" and "Anna Parkinson"; (b) signed agreement for sale and purchase dated 28 November 2013 with purchaser described as "Kevin Parkinson" and "Anna Parkinson" crossed out; (c)...
  • All other claims of privilege over remaining inspected documents are maintained