FUJIFILM BUSINESS INNOVATION NEW ZEALAND LTD v WHITTAKER [2022] NZHC 1760

FUJIFILM BUSINESS INNOVATION NEW ZEALAND LTD v WHITTAKER [2022] NZHC 1760

Leave was refused for Ernst & Young to rely on Fuji's discovered documents for its amended counterclaim because Ernst & Young failed to demonstrate special circumstances justifying collateral use of discovery and failed to specify which amendments relied on discovery; the trial will proceed on Fuji's amended claim and Ernst & Young's original counterclaim; Ernst & Young was ordered to disclose documents in its control relating to its awareness of some more than minimal loss or damage likely to have resulted from its audits of Fuji's 2013–2015 financial statements conducted in reliance on Fuji's representations.

Citation
[2022] NZHC 1760
Parties
First Plaintiff: FUJIFILM BUSINESS INNOVATION NEW ZEALAND LIMITED; Second Plaintiff: FUJIFILM LEASING NEW ZEALAND LIMITED; Third Plaintiff: FUJIFILM BUSINESS INNOVATION ASIA PACIFIC PTE LIMITED; First Defendant: NEIL WHITTAKER; Second Defendant: MARK DONALD ALLRIGHT; Third Defendant: GAVIN POLLARD; Fourth Defendant: ERNST & YOUNG
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 July 2022
Procedural Posture
Civil (contract and Tort; Auditors' Liability) / Interlocutory — Pre Trial Applications (discovery and Amendment of Pleadings)
Outcome
Interlocutory application disposed: leave refused; discovery ordered in specified limited area; trial directions given; costs reserved/in preliminary view awarded
Legal Topics
Use of Discovered Documents, Leave to Amend Counterclaim, Litigation Privilege, Vicarious Liability, Limitation/time Bar
Civil Procedure Discovery Law Auditors' Liability Negligence Contract Professional Indemnity Use of Discovered Documents Leave to Amend Counterclaim +3 more

Case Brief

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Parties

FUJIFILM BUSINESS INNOVATION NEW ZEALAND LIMITED

First Plaintiff

FUJIFILM LEASING NEW ZEALAND LIMITED

Second Plaintiff

FUJIFILM BUSINESS INNOVATION ASIA PACIFIC PTE LIMITED

Third Plaintiff

NEIL WHITTAKER

First Defendant

MARK DONALD ALLRIGHT

Second Defendant

GAVIN POLLARD

Third Defendant

ERNST & YOUNG

Fourth Defendant

Procedural Posture

Civil (contract and Tort; Auditors' Liability) / Interlocutory — Pre Trial Applications (discovery and Amendment of Pleadings)

Legal Issues

  1. 1 Whether Ernst & Young may rely on documents discovered from Fuji for an amended counterclaim
  2. 2 Whether the amended counterclaim materially alters the original counterclaim and requires leave or should be struck out
  3. 3 Whether Ernst & Young's alleged expansion of negligence claims to earlier audit years constitutes a new cause of action requiring leave

Ratio Decidendi

Leave was refused for Ernst & Young to rely on Fuji's discovered documents for its amended counterclaim because Ernst & Young failed to demonstrate special circumstances justifying collateral use of discovery and failed to specify which amendments relied on discovery; the trial will proceed on Fuji's amended claim and Ernst & Young's original counterclaim; Ernst & Young was ordered to disclose documents in its control relating to its awareness of some more than minimal loss or damage likely to have resulted from its audits of Fuji's 2013–2015 financial statements conducted in reliance on Fuji's representations.

Court Disposition

Interlocutory application disposed: leave refused; discovery ordered in specified limited area; trial directions given; costs reserved/in preliminary view awarded

Orders

  • Refuse Ernst & Young leave to rely on discovered documents for its amended counterclaim
  • Direct that the trial be conducted on Fuji's amended claim and Ernst & Young's original counterclaim