WIRE BY DESIGN LTD v THE ATTORNEY-GENERAL [2014] NZHC 2834

WIRE BY DESIGN LTD v THE ATTORNEY-GENERAL [2014] NZHC 2834 [13 November 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-1491[2014] NZHC 2834BETWEEN WIRE BY DESIGN LIMITEDPlaintiffAND THE ATTORNEY-GENERAL on behalfof THE MINISTER OF LANDINFORMATION NEW ZEALANDDefendantHearing: 13 November 2014Appearances: A H J Commons for plaintiffG J Kohler QC and J S Andrew for defendantJudgment: 13 November 2014(ORAL) JUDGMENT OF LANG J[on application for particular discovery][1] In this proceeding the plaintiff seeks damages against the defendant inrespect of the delay in completing a fit-out of premises to which the plaintiff agreedto be relocated.[2] I was asked today to deal with an application for particular discovery by theplaintiff. During the course of the hearing counsel were able to resolve alloutstanding issues between themselves, with one exception. I record in particularthat counsel for the defendant has now made arrangements for the plaintiff's advisersto informally inspect all of the files held by Octa Associates Limited.[3] The exception to which I have referred relates to the source documentsunderlying Document 224 in the bundle of documents tendered for the purposes oftoday's hearing. That document is headed "Compensation Model Summary", andwas evidently sent by the defendant's solicitors to the plaintiff's counsel with anemail on 29 November 2010. The summary was prepared by Opus, the defendant'sconsultant in relation to the fit-out.[4] The summary contains a schedule of "one-off costs" relating to the fit-out, aswell as dates upon which the defendant anticipated the costs would be incurred. Thisshows that the final expenditure in relation to the fit-out of the property was to beincurred in March 2011. In fact the work was not completed until the end of July2011.[5] The plaintiff will allege that the summary amounted to a representation bythe defendant that the fit-out would be completed no later than March 2011. It saysthat the representation was false or misleading, because the defendant must haveknown when it prepared the summary that it could never complete the fit-out by thatdate. The plaintiff seeks access to the defendants' source documents in relation tothe summary to assist it to establish that the defendant knew when it prepared thesummary that the fit-out could not be completed by March 2011.[6] The defendant contends that all relevant documents have been discovered,and that there are no documents on the Opus file that have not been discovered. Iaccept this statement so far as it goes, but during the hearing today junior counsel forthe defendant, who has sworn an affidavit in opposition to the present application,confirms that the plaintiff's advisers have not made any specific search for thesource documents underlying Document 224.[7] I accept that source documents of the type sought by the plaintiff may berelevant to the plaintiff's claim because they may tend to establish whether or not thedefendant was justified in representing that the fit-out would be completed by March2011. At present, however, I am entitled to proceed on the basis that the defendanthas provided evidence on oath to the effect that all of the documents that are on theOpus files have been discovered. There is no corresponding affidavit by the plaintiffstating expressly that the defendant has not provided any source documents forDocument 224.[8] In order to bring this issue to a conclusion, I make the following orders:a) The plaintiff is to file and serve a further affidavit by a person whohas personally viewed all of the documents discovered by thedefendant to confirm that the plaintiff has not received any of thesource documents underlying Document 224. The plaintiff shouldalso list in that affidavit any signed copies of contracts it may hold inrelation to the fit-out work carried out on the new premises bycontractors it engaged for that purpose.b) The defendant is to provide a further affidavit within 21 days ofreceiving the plaintiff's affidavit confirming that Opus holds nofurther documents in relation to Document 224 or, alternatively,drawing the plaintiff's attention to documents that have already beendiscovered by the defendant in relation to Document 224. Any newdocuments that the defendant discovers during its review of the Opusdocuments should also be listed in the affidavit.Outstanding interlocutory issues[9] The plaintiff issued a notice seeking further particulars from the defendantregarding one aspect of the defence. It appears that the defendant does not intend torespond to the notice, and it is likely that an application for further particulars will benecessary. It would obviously be of assistance if the application could be filed andserved as soon as possible.Trial date[10] This proceeding has now been on foot for some time. A trial date has not yetbeen allocated because the discovery process was not complete. Counsel agree thatit would now be of assistance for a trial date to be allocated.[11] I therefore allocate the proceeding a trial of three weeks durationcommencing on 2 June 2015. In anticipation of that hearing, I make the followingpre-trial directions:a) The plaintiff is to serve its written briefs, together with a draft indexto the bundle of documents, no later than 1 April 2015.b) The defendant is to serve its written briefs, together with asupplementary index, no later than 1 May 2015.c) The plaintiff is to file and serve a synopsis of opening submissions,chronology and bundle of documents, no later than 21 May 2015.[12] The date for close of pleadings is to be 15 March 2015.Pre-trial conference[13] The Registrar should arrange for a pre-trial conference, if possible before thetrial Judge, to be held no later than 21 May 2015. Counsel should also liaiseregarding whether it would be desirable to hold a conference of experts prior to thetrial. That issue will need to be addressed at the pre-trial conference on 21 May2015.Lang JSolicitors:Schnauer & Co, North Shore CityCrown Law, WellingtonCounsel:A Commons, Auckland