NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,
11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE
https://www.justice.govt.nz/family/about/restriction-on-publishing-judgments/	
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE	
CIV-2020-404-2160
[2023] NZHC 853	

BETWEEN	IAN KEVIN WERDER
Plaintiff	
AND	ROSHYN SINGH (LYONS)
First Defendant

RAJESHWARI SINGH (GOSAI)
Second Defendant

ROSHYN SINGH LYONS TRUSTEE COMPANY LIMITED
Third Defendant

JAG SAI RAJ TRUSTEE COMPANY LIMITED
Fourth Defendant	

Hearing:	14 March 2023	
Appearances:	P McCutcheon for Plaintiff
A R Gilchrist for First Defendant M Singh for Third Defendant	
Judgment:	21 April 2023	

JUDGMENT OF ASSOCIATE JUDGE LESTER

This Judgment was delivered by me on 21 April 2023 at 12:30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: …..

WERDER v SINGH [2023] NZHC 853 [21 April 2023]

[1]	Over the last 25 years or so,  Ian  Werder  (Mr  Werder),  Roshyn  Singh (Mr Lyons) and Rajeshwari Gosai (Ms Gosai) have had, to say the least, an involved relationship. That relationship saw Mr Werder and Mr Lyons owning a property in Calgary Street, Auckland and the parties having what is said by Mr Lyons to have been in a limited joint venture enterprise involving two residential properties in Ōtāhutu (Nikau Road and Park Avenue Road). At one point, the parties were flatmates and Mr Lyons and Ms Gosai were married between 1996 and 2013, when they were known as Mr and Mrs Singh.

[2]	Mr Werder claims there was also a long running joint venture between the three of them in relation to the acquisition of a number of residential properties in Auckland, beyond the limited joint venture referred to above. Mr Werder claims the joint venture began in 1997 and he relies on a signed document dated 31 January 1997, the status of which is controversial. There are two further documents relied on by Mr Werder to support the existence of a broad joint venture. These are referred to below; one from 2000 and one from 2003.

[3]	This proceeding was set down in November 2022 for a five-day hearing commencing in August 2024.

[4]	Two applications are before the Court. The first is the defendants’ application for security for costs and the second is an application by Mr Werder for further discovery and to address issues of privilege and the redaction of discovery documents by the defendants.

Calgary Street

[5]	The Calgary St property was purchased by Mr Werder and Mr Lyons in 1994 as tenants in common. They held the property together until 1997. Mr Lyons  and  Ms Gosai were married in 1996.

[6]	In 1997, Mr Werder transferred his half-share in the property to Mr Lyons for
$1.00. The solicitor acting for Mr Lyons obtained from Mr Werder a document recording that Mr Werder had been advised to seek independent advice but that he waived his right to do so, the document stating:

I confirm that all financial transactions between Roshyn Singh and myself have been personally attended to, and I do not require your involvement in that regard.

[7]	Mr Werder says that the equity in Calgary Rd was the springboard for the joint venture he alleges went on to acquire further properties.

[8]	Mr Lyons and Ms Gosai separated in 2013 and their matrimonial property issues went to the Family Court. I understand those proceedings resulted in the properties which Mr Werder alleges are held in the joint venture, being divided equally between Ms Gosai and Mr Lyons, with the properties either having been sold or distributed in specie.

[9]	The third defendant, as its name suggests, is a trust established by Mr Lyons when he used the surname Singh. This trust was established by him to hold at least one of the properties (Calgary St), which he received through the property division.

[10]	The fourth defendant is a trust established by Ms Gosai for the same purpose. The two trusts are defendants as Mr Werder seeks to trace to those trusts, what he claims were joint venture properties or their proceeds.

The key joint venture documents relied on by Mr Werder

Agreement dated 31 January 1997

[11]	The agreement dated 31 January 1997 (the 1997 Agreement) is a highly contentious document. It purports to be signed by the parties and to record that the properties held by “R & R Singh Properties” are owned 50 per cent as to Mr Lyons and Ms Gosai and 50 per cent by Mr Werder. Mr Werder claims to have been present when the 1997 Agreement was signed by all the parties. However, signature analysis obtained by Ms Gosai and confirmed by expert analysis obtained by Mr Werder, shows that the signature on the 1997 Agreement is not that of Ms Gosai.

[12]	Mr Mitch Singh, counsel for Ms Gosai, referred  me to what appears to be     a draft of the 1997 Agreement with handwritten changes. Mr Mitch Singh drew my attention to the fact the handwritten changes show that Mr Werder’s share as being

21 per cent,  rather  than  being 50 per cent.	I will turn to the significance of the  21 per cent below.

[13]	Mr Mitch Singh was highly critical  of  the  draft  1997 Agreement  and  of Mr Werder’s evidence. Mr Mitch Singh submitted that Mr Werder’s claim against  Ms Gosai was weak.

Handwritten notes dated 30 May 2000

[14]	This is a more problematic document for Mr Lyons. It is a six-page handwritten document that identifies the properties Mr Werder says are in the joint venture. The 2000 document sets out for each property, the amount paid for the deposit and the outgoings to arrive at an equity figure and states Mr Werder’s share as being
25.09 per cent. I was told a handwriting analysis shows that the 2000 document was written by Mr Lyons and is apparently signed by him. It does not purport to be signed by Ms Gosai. The document was discovered by Ms Gosai who found it among records in her garage. A note on the first page of the document says: “The percentage share for Werder is over all of Singh Investments and properties”.

[15]	Not surprisingly, this handwritten document is a key document in Mr Werder’s claim, albeit he alleges that he was induced to sign it through undue influence as he wishes to separate himself from the 25.09 per cent share, as he claims a 50 per cent share.

[16]	Other than finding the document and including it in her discovery, Ms Gosai does not appear to have signed or been involved in the 2000 document.

Handwritten notes January 2003

[17]	This is another document that Mr Werder’s handwriting analyst says was prepared by Mr Lyons and signed by him. It purports to record Mr Werder’s share being adjusted down to 21 per cent. It concludes by recording that as Mr Werder was in fulltime employment, he would contribute to all common expenses at the rate of 21 per cent. This 2003 document does not purport to be signed by Ms Gosai.

[18]	Mr Mitch Singh submitted the calculation of a 21 per cent share in the 2003 document casts doubt on the handwritten draft amendments to the draft 1997 Agreement  which  showed  Mr Werder’s  share   amended   from   50 per cent   to 21 per cent. It does seem a striking coincidence that a revision of Mr Werder’s share in January 2003 was also proposed, presumably by Mr Lyons in 1997. Whether such points to the 1997 Agreement having been created much later or whether the handwriting on the draft 1997 Agreement was added later is an issue for trial.

[19]	Ms Gosai says she was unaware of the transfer of the Calgary St property to Mr Lyons in 1997 and Mr Lyons subsequently transferring Calgary St to himself and to Ms Gosai as joint tenants. Ms Gosai says she was unaware of the handwritten 2000 and 2003 documents and, as recorded above, the handwriting analysis supports that she did not sign the 1997 Agreement. During the hearing, Mr McCutchen, counsel for Mr Werder, advised that Mr Werder accepted his recollection of seeing Ms Gosai sign the 1997 Agreement must be mistaken, as he accepted the conclusion of his handwriting analyst.

Security for costs

[20]	Mr McCutchen constructively accepted the threshold for security for costs in r 5.45 of the High Court Rules 2016 (the Rules) was met, that is, there is reason to believe that Mr Werder will be unable to pay costs if he is unsuccessful.

[21]	The focus of the hearing was on the merits of Mr Werder’s claim and if security was to be awarded, in what sum.

[22]	Mr Gilchrist, counsel for Mr Lyons, and Mr Mitch Singh, both accepted security is forward looking. They both submitted costs were on the basis of a four day hearing.1  Both defence counsel sought that security be set at $40,000, that is a total of
$80,000. Ms Gosai’s application sought that the first tranche of $20,000 be paid within 20 working days of any order, with the second tranche of $20,000 being paid

1	The original calculation was on the basis of a four day hearing – the hearing is now five days and hence counsel submitted the amount of security sought was accordingly modest.

at the close of pleadings date, which is December 2023. Mr Gilchrist did not object to staged security in respect of the $40,000 he sought for his client.

[23]	The real issue for the Court is to determine whether security is just in all the circumstances.

[24]	The Court must endeavour to assess the merits and prospects of success of the claim. Here, there are striking factual disputes, in particular the status of the 1997 Agreement. The Court’s assessment can be no more than an impression, it cannot be a definitive indicator of the ultimate outcome of the trial.2

[25]	Mr McCutcheon accepts security would not stymie Mr Werder’s proceeding. Where security would bring the plaintiff’s claim to a dead halt, the threshold is something similar to that of a striking out.3

[26]	Mr Mitch Singh submitted that Mr Werder’s case against his client is all or nothing. I do not accept that.

Merits of Mr Werder’s claim against Mr Lyons

[27]	That Mr Werder relied on the “agreements” referred to at [11] to [19] above, is well known to the other parties.

[28]	Mr Lyons, in his affidavit in support of the application for security for costs, did not confront the documents. In particular, he did not address the 30 May 2000 handwritten document said to have been written and signed by him which records  Mr Werder was entitled to a share in the listed properties. Indeed, Mr Lyons’ affidavit does not really go into the merits in any real detail.

[29]	Mr Gilchrist submitted what Mr Lyons did in his evidence was confront the issues raised by Mr Werder in his affidavit in support of the application for discovery. Mr Werder did not raise the handwritten 2000 document in this affidavit. In my view, Mr Lyons had to give his view of the merits of Mr Werder’s claim which, at the very

2	Robert Osborne (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HR5.45.03(2)].
3	Deliu v Chapman [2020] NZHC 2100 at [5]-[6], Osborne, above n 2, at [HR5.45.03(1)].

least, meant confronting the 2000 handwritten document which at face value is squarely against Mr Lyons’ position.

[30]	Mr Lyons addresses other aspects of Mr Werder’s claim which, while not put in this way, really amount to saying that if Mr Werder has a claim then it is not for half of the properties built up by Mr Lyons and Ms Gosai.

[31]	The evidence is that Mr Werder’s cash contributions were limited albeit, he asserts that he did work on the properties. In a real sense, this is consistent with the 2000 and 2003 handwritten documents recording Mr Werder’s share being 25 per cent reducing to 21 per cent.

[32]	It is counterintuitive that Mr Werder seeks to argue he is not bound by the 2000 handwritten document on the basis he was induced to sign it through undue influence, yet it is probably the most helpful document to his case that I have seen.

Case against Ms Gosai

[33]	On Ms Gosai’s case, she was an unknown bystander to virtually everything that occurred. She says she was unaware that the Calgary St property was transferred into her name in 1997 and unaware of the documents relied on by Mr Werder discussed in [11]-[19] above.

[34]	One claim made by Mr Werder is to a resulting trust based on the transfer of the Calgary St property to Mr Lyons for $1.00, on the basis Mr Lyons’ on-transfer to Ms Gosai was for no consideration. Mr Werder says he has a tracing remedy against Ms Gosai.

[35]	Mr Mitch Singh, in response to  the  resulting  trust  argument,  referred  to Mr Werder’s note to the solicitor handling the transfer of the Calgary St property set out at [6] above, where Mr Werder confirms financial arrangements had been made between him and Mr Singh in respect of the transfer. Mr Mitch Singh submitted the note was inconsistent with the idea of the transfer of Calgary St being for nil value, giving rise to a resulting trust.

[36]	That argument is a two-edged sword. It begs the question of what the financial arrangements were. Mr Lyons says Mr Werder could not afford to meet his share of the mortgage on the Calgary St property and hence he was being released from that obligation. However, there is no evidence as to the equity Mr Werder and Mr Lyons had in the Calgary St property. They had both owned the property together for only four years. Mr Lyons’ version of events would only make sense if there was virtually no equity in the property.

[37]	Mr Werder’s case makes more sense if he had a reasonable amount of equity in the property at the time of transfer. If, in reality, Mr Werder had no equity in the property, then in real terms, what was he putting into the alleged joint venture?

Decision on the merits

[38]	The impression I am left with is that Mr Werder’s claim has a reasonable prospect of success in respect of liability as it concerns Mr Lyons, but it is weaker by some margin, in respect of Ms Gosai.

[39]	In terms of quantum, the impression I have is that Mr Werder’s claim against Mr Lyons insofar as Mr Werder maintains a claim for a half share of the properties he alleges were in the joint venture, faces difficulty. I hold that view for the following reasons:

(a)	A  full  50 per  cent  share  is  inconsistent  with   the  terms   of  the 30 May 2000 and 21 January 2003 documents. The onus will be on Mr Werder to establish that he is not bound by those documents because of undue influence.

(b)	Mr Werder’s cash contributions appear to be limited, albeit he says he contributed labour. Determining the value of his non-cash contributions will not be easy. There is also an issue as to the status of some payments made by Mr Werder when he was occupying one of the properties, that is, whether some percentage of those payments be treated as rent given Mr Werder was receiving a benefit from joint venture property.

(c)	As regards to Ms Gosai, Mr Werder does  not  have  the  benefit  of Ms Gosai being involved in the 2000 and 2003 handwritten documents referred to above.

(d)	Mr Mitch Singh’s submissions in support of Ms Gosai’s application for summary judgment highlight a number of difficulties with Mr Werder’s claim against Ms Gosai.

(e)	Probably the greatest risk to Ms Gosai is a finding that there was a joint venture between Mr Werder and Mr Lyons and that Mr Lyons used joint venture property to settle Ms Gosai’s relationship  property  claim.  Mr Mitch Singh submitted that Ms Gosai would have a change of position defence. As a matter of impression, I doubt such a defence would be a complete answer to Mr Werder’s claim if he is successful. The counterfactual is that if Mr Lyons had, in the relationship property proceedings, acknowledged that some or all of the properties were in the joint venture, then Mr Werder’s share would not have been available to Ms Gosai. On the other hand, no doubt Ms Gosai has re-organised her life in reliance of the outcome of the relationship property proceeding, however, simply buying another property may not be enough for the defence to apply. I note there is no cross-claim between Ms Gosai and Mr Lyons.

[40]	Mr Mitch Singh submitted this proceeding has been conducted in a manner lacking proportion. Mr Werder’s difficulty is that his claim covers events spanning nearly a quarter of a century where many of the arrangements were largely informal.

Decision in respect of security

[41]	Mr Werder’s claim as presently pleaded against Ms Gosai has a number of difficulties. It depends on Ms Gosai having signed the 1997 Agreement when that claim is now no longer maintained.

[42]	The ordering of security will not prevent the claim proceeding.

[43]	The amount of security and the staging of security proposed by Mr Singh cannot be said  to be excessive.  I am satisfied  an order for security  in favour of   Ms Gosai is called for.

[44]	Accordingly, I order that Mr Werder is to pay security for costs in the sum of
$40,000 in favour of Ms Gosai. The sum of $20,000 is to be paid within 20 working days of this judgment and a further $20,000 is to be paid on the setting down date.

[45]	The position with Mr Lyons is quite different. I do not understand what his defence  is  to  the  2000  and  2003  handwritten  documents.  There  is  merit  in   Mr McCutcheon’s submission that Mr Lyons’ position is little more than a denial of Mr Werder’s claim when, the documents I have referred to called for an explanation. As I have said, where Mr Lyons was applying for security for costs, he needed to demonstrate that the prospects of Mr Werder’s claim was weak. Given my view that Mr Lyons  has not established Mr Werder’s  claim is weak as to liability, that has      a significant impact on my conclusion as to security. However, I am satisfied that  Mr Lyons has demonstrated Mr Werder’s claim as to quantum has difficulties.

[46]	However, in the  absence  of  a  Calderbank  offer,  regardless  of  whether  Mr Werder succeeds for 50 per cent of the joint venture assets or 21 per cent of the joint venture assets, Mr Lyons will not be awarded costs.

[47]	I decline Mr Lyons’ application for security for costs.

Mr Werder’s discovery application

[48]	Mr Werder’s discovery application has, through the co-operation of counsel, been reduced to three broad areas. They are:

(a)	discovery of the value received by Ms Gosai from the relationship property settlement that went into the purchase of her property at Netherton St, Auckland;

(b)	challenges to privileges or confidentiality by way of redaction; and

(c)	discovery of the Family Court file relating to the relationship property proceedings between Mr Lyons and Ms Gosai.

Netherton Street property

[49]	Given Mr Werder seeks to trace joint venture property into Ms Gosai’s hands, I am satisfied that Ms Gosai should disclose how much of the relationship property settlement she received went into the Netherton St property.

[50]	Mr Werder’s position is that all of  the  properties  held  by  Mr Lyons  and Ms Gosai were in the joint venture. Accordingly, whatever Ms Gosai received in the relationship property settlement was property in which Mr Lyons had an interest. If funds in which Ms Gosai had an interest went into the Netherton St property, then that information is relevant.

[51]	Discovery is sought against Ms Gosai’s trust. However, in order to obtain that information, Mr Werder does not need a full unredacted trust account ledger and all client trust account statements in relation to the Netherton St transaction. All he needs is disclosure of the funds from the relationship property settlement that went into the Netherton  St  property.  I do  not  see how any  other information  will  be relevant.  I expressed this view during the hearing and Mr Mitch Singh said he would take instructions and provide that information to Mr McCutchen.

[52]	Mr Mitch Singh did not address this issue in the joint memorandum of counsel for the defendants dated 17 March 2023. I therefore order (if such is still necessary) that Ms Gosai is to discover such documents as are necessary to determine the value of relationship property assets/funds received by her which were used to acquire the Netherton St property, the process by which those funds were transferred to her trust, and whether there is a debt back to her in relation to those funds.

The redaction of discovery documents

[53]	The  first  confidentiality/redaction  issue  concerns  objections  raised  by  Mr Werder in redactions to trust account ledger printouts discovered by Ms Gosai.

[54]	Mr McCutcheon seeks details of those redactions so that he can determine whether the debits to which they relate on the trust account ledger printouts are expenditure personal to Mr Lyons and Ms Gosai. I was invited to review the documents without the redactions to assess whether the claim for confidentiality should be maintained.

[55]	Mr McCutcheon can calculate the value of the deductions as the running balance down the righthand side of the ledger remains in place. I do not accept that the value of each deduction is confidential but I accept that a number of the narrations as to what the funds were applied to, is confidential. In respect of all of the redactions in the material Ms Gosai, all I can say is that the expenditure relates to personal expenditure of Mr Lyons and Ms Gosai. Accordingly, the expenditure recorded is from the net proceeds of the properties to which the trust account ledgers relate. The costs are not related to the realisation of the property but were funds that were available for distribution between Mr Lyons and Ms Gosai.

[56]	Accordingly, Mr McCutcheon can approach his accounting exercise in identifying the net funds available from the sale of each of the alleged joint venture properties recorded in the trust account ledgers on the basis that the redacted debits were treated as relationship property to which Mr Lyons and Ms Gosai were entitled. What the funds were used for is not relevant to Mr Werder’s proceeding.

[57]	The following document references are from bundle 3 of the hearing bundle and the following directions relate to documents 638, 644, 651 and 656. These documents are all ledgers relating to how the proceeds of sale of the properties were dealt with. In respect of each of those documents, redactions of the value of each redacted transaction is to be removed. The redactions are otherwise to remain, as they concern confidential information. Mr Werder does not need to know what those funds were applied to in  order to determine the net  funds available  to Mr Lyons and     Ms Gosai upon the sale of those properties. How Mr Lyons and Ms Gosai applied what they treated as their funds is irrelevant to Mr Werder’s claim to a share in those funds. Again, the expenditure was not related to the realisation of assets.

[58]	Two of the redactions on document 103.0656 will be explained by the provision of the Family Court judgment, which I refer to below.

[59]	The redaction in document 103.0658 does not relate to a confidential matter. That redaction is to be removed. Indeed, it may well be overtaken as I have said, by the provision of the Family Court judgment referred to below.

[60]	As to document 103.0659, that redaction is also not accepted for the reasons given in respect of the last document (103.0658).

[61]	Document WHI.1.0006 is an invoice which corresponds to the last redacted entry on the first page of document 103.0656. Once Mr Werder knows that this debit was not an expense concerning the realisation or maintenance of the joint venture properties but rather an expense incurred by Mr Lyons and Ms Gosai, that is all he needs to know in order to calculate the net sale proceeds from properties he says were in the joint venture. What Mr Lyons and Ms Gosai thought was their money and how it was spent, is not relevant. If they want to claim a redacted expense was a cost of realisation of a property, they will need to disclose those details. If Mr Werder succeeds in his claim, then the amount to which Mr Werder will be entitled will be based on the net proceeds of sale, not on the balance left after Mr Lyons and Ms Gosai used some of those funds to meet their personal expenses.

[62]	As to the last item in document 103.0661, the same principle applies. The redaction does not relate to an expense concerning the maintenance or realisation of the claimed joint venture properties. It will not feature in any calculation of the net proceeds of sale of the properties that were sold. The information is not relevant and the redaction is confirmed.

Challenges to redactions by Mr Lyons and third defendants

[63]	The documents which Mr McCutcheon seeks should not be redacted, all come from a conveyancing file relating to the  transfer  of  the  Calgary  St  property  to  Mr Lyons’ trust. These documents post-date the Family Court proceedings and all seem to be dated around August 2020.

[64]	Some of the redactions appear to relate to matters of no consequence, for example, details of disbursements on an invoice for conveyancing work. They are not relevant.

[65]	I have not been provided with unredacted copies of the documents.

[66]	Given the nature of Mr Werder’s claim against Mr Lyons and his trust, the process by which Mr Lyons transferred the Calgary St property to his trust, including the purchase price, any debt back from the trust and any forgiveness of debt, should be disclosed, however, it is hard to see how material beyond that information can be relevant.

[67]	Documents recording the sale price between Mr Lyons and his trust, how that purchase price was met by his trust, including whether there was a forgiveness of debt or whether the trust raised finance to pay Mr Lyons, are to be disclosed. As I do not have the unredacted documents, I cannot be sure which of the redactions provides that detail. Mr Gilchrist is to review the redactions and provide Mr McCutcheon with sufficient unredacted documents to provide the above information.

[68]	The balance of the redactions, in part, seem to relate to fees paid by Mr Lyons in respect of the transaction or details of a facility with the ANZ Bank. I cannot see how that information is relevant to the tracing exercise Mr Werder seeks to undertake against Mr Lyons’ trust. Should the unredacted material disclosed by Mr Gilchrist give rise to the need for an examination of further redactions, leave is reserved for Mr McCutcheon to raise that issue with me.

Access to Mr Lyons’ and Ms Gosai’s Family Court file

[69]	Mr McCutchen, on behalf of Mr Werder, sought that this Court declare it appropriate for relevant information: “… subject to the leave of the family court being given … to be obtained directly from the family court file …”. In other words, this Court would make an order aimed at facilitating Mr McCutchen having the ability to inspect the Family Court file.

[70]	While Mr McCutchen sought that this Court’s order be subject to the leave of the Family Court, I do not consider such a declaration to be appropriate. Access to the Family Court file is a matter for that Court.

[71]	However, material from the Family Court file and indeed, the Family Court files themselves, are documents within the power  and  control  of  Mr Lyons  and Ms Gosai.  Control in relation to a document means possession of the document or   a right to inspect or copy the document. Ms Gosai and Mr Lyons have a right to inspect or copy their Family Court file, they will also have their own copies of documents from those proceedings.

[72]	Reference was made to s 11B(3) of the Family Courts Act 1980 which provides:

Publication of reports of proceedings

…

(3)	A person may not, without the leave of the court, publish a report of proceedings in the Family Court that includes identifying information where—

(a)	a person under the age of 18 years—

(i)	is the subject of the proceedings; or

(ii)	is a party to the proceedings; or

(iii)	is an applicant in the proceedings; or

(iv)	is referred to in the proceedings; or

(b)	…

(emphasis added)

[73]	I was told that the judgment of the Family Court, relating to relationship property issues, includes reference to Mr Lyons’ and Ms Gosai’s children. However, if that judgment is redacted to remove any details identifying the children who are minors, then discovering that judgment will not, in my view, breach s 11B(3) of the Family Courts Act, as the judgment will not include identifying information in respect of a person under the age of 18.

[74]	Ms Gosai and Mr Lyons were prepared to make a copy of the relationship property judgment available subject to clarification of this point.

[75]	Accordingly, there is a direction that Mr Lyons and Ms Gosai are to make their relationship property judgment available, subject to the judgment being redacted to remove identifying information referring to any person under the age of 18 years. While Mr Werder  is well aware of the identity of the children of Mr Lyons  and     Ms Gosai, the redaction is to occur to ensure a breach of s 11B(3) does not occur.

Evidence and transcript of any evidence in the Family Court

[76]	The issue is whether the evidence filed in the Family Court hearing and the transcript of any evidence should be discovered.

[77]	Mr Werder claims that from his involvement in the Family Court process, there was some acknowledgment of the interest he asserts in this proceeding.

[78]	Mr Gilchrist expressed some scepticism against that claim as he submitted that if the Family Court Judge was aware that a third party had an interest in property said to be relationship property, that Judge would want that interest to be investigated. That may well be the case, but it very much depends on the nature of what was said about Mr Werder’s interest, if anything.

[79]	The issue is relevance. Mr Gilchrist submitted that Mr Werder had not established relevance but given the way this aspect of the discovery application developed, it is for Ms Gosai and Mr Lyons to assess the Family Court documents for relevance as part of their discovery obligations.

[80]	Again, the application as originally framed, would have seen Mr McCutcheon having access (subject to Family Court approval) to the Family Court file. During the hearing, I raised with counsel that the Family Court documents were within the power and control of Ms Gosai and Mr Lyons. Accordingly, they are documents that they should assess for relevance. Given the relationship property proceedings deal with the very assets Mr Werder says are in the joint venture and given he says there was some reference during the hearing to his interest, albeit without detail, the material at face

value should be assessed for relevance. This is not a fishing expedition as submitted by Mr Gilchrist because we know that the Family Court proceedings deal with the same assets.

[81]	Accordingly, Mr Werder’s application as framed in the draft orders that he tabled in the hearing is declined. Access to the Family Court file is a matter for that Court, however, discovery in this Court is a matter upon which I can rule, and I propose to make orders in relation to this  issue,  albeit  they are not  the orders  sought  by Mr Werder, however, it is more efficient to deal with the issue now rather than have Mr Werder file a further application. That issue will be relevant to costs.

[82]	Equally,  there is no  need for duplication in the  discovery exercise.  Both  Ms Gosai and Mr Lyons have access to the Family Court files.

[83]	Mr McCutcheon did not seek material that would be privileged, that is, advice received by Ms Gosai or Mr Lyons in relation to the Family Court proceedings, but rather he focused on what was in the Family Court file. Nor did he seek any information dealing with the children of Mr Lyons and Ms Gosai.

[84]	I direct as follows:

(a)	Ms Gosai and Mr Lyons are to co-operate in  obtaining or compiling  a copy of the material on their Family Court file, including any transcript of evidence.

(b)	The above material is to be assessed for relevance to the issues in this proceeding. Relevant material will concern the acquisition, sale or maintenance of properties and any  material  relating  to  Mr Werder or which is otherwise relevant to the proceeding.

(c)	The above material is to be produced in a List of Documents to be filed and  served  within  25 working  days.    (Leave  is  reserved  to  seek  a variation to this time if it proves unworkable) .

(d)	The costs of the above are, in the first instance, to be shared equally by Ms Gosai and Mr Lyons but will be costs in the cause.

[85]	Following the hearing on 14 March 2023, counsel for the defendants filed with leave, a memorandum in relation to discovery of material from the Family Court file given the way the issue developed at the hearing. I address briefly the points raised in that memorandum, albeit in my view they should not have been raised.

[86]	The first is the proportionality of the further discovery. The fact is, this material should have been reviewed for relevance by the defendants in completing their initial discovery. In a case like this where there are credibility issues and disputes of fact spanning many years, the positions that the parties have previously committed themselves to become important. The proceeding involves a significant sum of money. The defendants say the discovery involves a significant burden which is why I sought that defendants’ counsel confer on the mechanics of giving that disclosure so that the burden would be divided between them.

[87]	Firstly, there is reference to there being considerable confidential documentation. Whether material is confidential is a separate issue from whether it is relevant and should be discovered. That is a matter to be addressed in the course of provision of discovery. Personal/relationship issues between Mr Lyons and Ms Gosai disclosed in the Family Court proceedings are unlikely to be relevant.

[88]	Counsel say they have not been able to locate any precedent where a party has been ordered to request files held by another Court. That may be because other parties have recognised that such documents are within their control as defined in r 1.3 of the Rules. In any event, this submission would not apply to the documents already held by the parties or their counsel from the Family Court hearing.

[89]	Defendants’ counsel then raise the issue of the collateral use of documents disclosed on discovery. I do not consider the issue of collateral use arises. Here, the defendants are being required to discover documents within their control. Those documents, when discovered in this proceeding, will in this proceeding be subject to the collateral use rules. The documents Mr Werder may obtain through the discovery

process may not be used outside of this proceeding and Mr Werder will face consequences if he breaches that obligation.

[90]	I accept counsels’ advice that there will be significant material to review but  I come back to the point that they need only discover relevant material and the defendants were obliged to review all material within their control for relevance in the first place.

Costs

[91]	The costs of the above applications are reserved. Each party has had some success. No doubt counsel will reflect on that before applying for costs.

[92]	If no party seeks costs within five working days of the date of this judgment, then the order of the Court shall be that there is no order as to costs. Any application for costs is to be no more than three pages. Any response to an application for costs (to be not more than three pages), is to be filed within five working days of receipt of the application for costs.

[93]	The unredacted documents provided for review are to be sealed on the file and will not be searchable, including by the parties without leave of a Judge.

Associate Judge Lester

Solicitors:
Peter McCutcheon, Auckland (for Plaintiff)
Kiely Thompson Caisley, Auckland (for First and Third Defendants) Glaister Ennor (for Second and Fourth Defendants)

Copy to counsel:
A R Gilchrist, Barrister, Auckland (for First and Third Defendants)