IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7681 [2013] NZHC 1081

BETWEEN	STUART GORDON SPENCE Plaintiff

AND	CHRISTOPHER MAURICE LYNCH Defendant

AND	AMANDA AMELIA WHITE First Third Party

AND	ANNE LEOLINE EMILY FREEMAN Second Third Party

Hearing:	9 May 2013

Appearances: P Wright for Plaintiff and Defendant
A A White in person
A L E Freeman in person
D Broadmore for Non-Party (Bank of New Zealand) Judgment:	9 May 2013
Reasons:	14 May 2013

REASONS FOR JUDGMENT OF KATZ J [Application for non-party discovery]

Solicitors:
C Lucas, Lucas & Mabin, Auckland
L O’Gorman/D Broadmore, Buddle Findlay, Auckland

Copy to:
P Wright, Barrister, Auckland
A A White
A L E Freeman

SPENCE V LYNCH HC AK CIV-2011-404-7681 [9 May 2013]

Introduction

[1]       The plaintiff, Stuart Spence, is the former de facto partner of the first third party, Amanda White.  Following the breakdown of their relationship he sought to recover $224,480.48 which he claimed to have loaned to a trust associated with Ms White, the DCT Trust.   The trustees were jointly and severally liable for any debt.  Mr Spence therefore elected to only pursue the defendant, Christopher Lynch, who had been an independent professional trustee of the DCT Trust at the relevant time.

[2]       Mr Lynch joined his (former) co-trustees, Amanda White and her mother Anne  Freeman  to  the  proceedings,  as  third  parties.    He  subsequently  settled Mr Spence’s  claim  against  him  for  $150,000.    He  now  seeks  a  contribution  or indemnity from his (former) co-trustees.   In addition, Mr Spence has assigned to Mr Lynch his debt claim of $224,480.48, which Mr Lynch now seeks to recover from Ms White and Ms Freeman in the alternative.

[3]       Ms White and Ms Freeman have filed a counterclaim  against Mr Lynch which includes claims of negligence and breaches of fiduciary duty.  Significant damages are sought.  The proceedings are set down for trial commencing 20 May
2013.

[4]       On 28 March 2013 Ms White and Ms Freeman filed a non-party discovery application against the Bank of New Zealand (“Bank”).   They seek discovery of various documents which they say are relevant to their defence and counterclaims. Given the imminence of the trial date (20 May 2013) I made the orders set out at [19] below at the conclusion of the hearing, with reasons to follow.  My reasons are set out below.

The non-party discovery orders sought against the Bank

[5]       The  non-party  discovery  application  sets  out  the  orders  sought  in  the following terms:

(a)       The third parties respectfully request an order directing the Bank of New Zealand to disclose documents relating to the account operating authority signed by Mr Stuart Spence and the signatory of the DCT Trust, Ms Amanda White.  Such authority which entitled Mr Spence to access to his personal accounts via being linked to the DCT Trust internet banking facility.

(b)       The third parties respectfully request an order directing the Bank of New Zealand to disclose all bank statements of the DCT Trust for the period commencing when the aforementioned authority was first loaded for Mr Spence, around late 2005 until the authority was cancelled, date unknown.

[6]       The Bank opposed the granting of such orders, on the grounds that:

(a)       the documents that the third parties are seeking are not described with sufficient clarity to enable the Bank to comply with any order for discovery; and

(b)	the application does not provide for the third parties to pay the Bank’s

costs.

The scope of the application

[7]       The precise scope of the discovery orders sought is not clear.   The third parties did not, however, take issue with the Bank’s submission that if the orders sought  were  granted  they  would  require  the  Bank  to  provide  the  following documents:

(a)	documents relating to any account operating authorities signed by

Mr Spence (“Request A”);

(b)       any account operating authority enabling Mr Spence to have internet access   to   his   personal   accounts   “linked   to   the   DCT   Trust” (“Request B”); and

(c)       all bank statements in relation to the DCT Trust account from the date the account operating authority enabling Mr Spence to have access to the DCT Trust account was signed (allegedly late in 2005), to the date the authority was cancelled (“Request C”).

Request A

[8]       The Bank’s evidence was that it had already provided Ms White with a copy of  the  account  operating  authority  signed  by  her  in  relation  to  the  DCT Trust account.  There are no further documents relating to the account operating authority for the DCT Trust account.  The Bank therefore did not oppose the application to the extent that it relates to copies of all account operating authorities.

Request B

[9]       The  Bank’s  evidence  was  that  Mr  Spence’s  personal  accounts  are  not (and were not) “linked” to the DCT Trust account.   They are separate accounts. However, if a customer was both:

(a)	registered for internet banking; and

(b)	a signatory for two accounts,

then the accounts would appear to be linked, as both accounts will be accessible on that customer’s internet banking screen.   Due to the way that the bank systems operate, internet banking access runs with the individual, not the account.

[10]     The Bank’s evidence was that the only documents that could be provided in response  to  Request  B  are  two  documents  that  specify  the  dates  from  which Mr Spence  was  registered  for  internet  banking  (being  July  2008).    These  two documents have not been provided to Ms White to date because, without a Court

order, the Bank requires Mr Spence’s permission to disclose his personal information

to a third party.

[11]     Mr  Wright  appeared  for  Mr  Spence  at  the  hearing.    He  advised  that Mr Spence is willing to consent to the Bank disclosing the relevant documents to the third parties.  Accordingly an order in relation to those documents was also able to be made by consent.

Request C

[12]     The Bank’s evidence in relation to Request C was that, in respect of bank accounts for the DCT Trust account generally, documents prior to April 2006 no longer exist, as the bank does not keep records for longer than seven years.   The Bank had previously advised Ms White of this.

[13]     Documents subsequent to April 2006 are, however, available to Ms White via her online banking facility, at no charge (as Ms White had also been previously advised).  Further, the Bank has already supplied bank statements for the DCT Trust account up to April 2009 to Ms White at no charge.

[14]     The only further documents that could be provided are hard copies of bank statements from April 2009 onwards.   The Bank has advised Ms White, however, that these are available at no cost through her internet banking facility.  If hard copies of any statements from April 2006 onwards are required these can be supplied at a cost of $5.00 per statement.

[15]     The third parties confirmed during the hearing that they did not pursue this limb of the application.  Given the previous correspondence between the parties it is somewhat unclear as to why the third parties continued to seek discovery of these documents at all.  Unfortunately the Bank was put to the time and expense of filing a notice of opposition and evidence on the issue.

Costs

[16]     The Bank expressed concern that, since April 2009, it has received a number of information requests from Ms White and as a result:

(a)	it  has  already  provided  the  third  parties  with  a  large  number  of documents requested in the non-party discovery application; and

(b)	it has already expended a significant amount of resources and costs in relation to dealing with the third parties’ requests.

[17]     Evidence was provided which summarised the most relevant of the third parties’ requests for information and documentation from the Bank and the Bank’s response to those requests.  Against this background, the Bank sought an order that its reasonable costs of both complying with any discovery orders and of the third party discovery application itself, be paid by the third parties.

[18]     The Bank consented to providing the documents included within Request A. The third parties withdrew their application for the documents in relation to Request C at the hearing.  In relation to Request B the Bank had no option but to oppose the application unless and until Mr Spence consented to provision of the relevant documents (which he did at the hearing).  The Bank has therefore acted responsibly throughout.  It has been put to costs in opposing the application.  It has filed a notice of opposition and a supporting affidavit which was of considerable assistance to the Court.  Mr Broadmore appeared in Court to argue the matter.  I accordingly saw no basis  for departing from  the usual  practice of awarding reasonable costs  to the non-party in relation to non-party discovery application.

Orders

[19]     For the reasons outlined above I made the following orders on 9 May 2013:

(a)	The   Bank   is   to   provide   informal   discovery   of   the   following documents:

(i)	documents relating to any account operating authority for the

DCT Trust account signed by Mr Spence;

(ii)      any account operating authority enabling Mr Spence to have internet access to his personal accounts “linked to the DCT Trust” including in particular any documents that specify the dates from which Mr Spence was registered for internet banking.

(b)	The third parties are to meet the Bank’s scale costs in respect of the non-party discovery application on a 2B basis.

(c)	The third parties are to meet the Bank’s actual and reasonable costs

(including solicitor/client costs) of complying with the above orders.

Katz J