IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2009-091-197 [2013] NZHC 1513

BETWEEN	SAINSBURY LOGAN & WILLIAMS Plaintiff	

AND	
ROBERT ARTHUR BELL Defendant	

Hearing:	On the papers	

Judgment:	
21 June 2013	

JUDGMENT OF CLIFFORD J AS TO COSTS

[1]       On 7 June 2012 I heard an application by Sainsbury Logan & Williams for an “unless”  order  that,  failing  the  defendant  and  counterclaim  plaintiff  Mr  Bell swearing, filing and serving a list of documents which fully complied with earlier Court directions, then Mr Bell’s defence and counterclaim be struck out.

[2]       I made an order that day for further and better discovery, but not on the unless basis sought by the plaintiff.  I released a minute the next day recording the terms of, and my reasons for, that judgment.1    I reserved costs, and heard nothing further.

[3]       Mallon J has recently delivered a judgment2  reflecting a further chapter in this discovery saga.    As Mallon J notes in that judgment, unbeknown to me the plaintiff  had  by memorandum  dated  25  February 2013  applied  for  2B  costs  of
$7,093.00 on the application I had heard in June 2012.  In a further memorandum of

15 March 2013 Mr Bell opposed that application, saying my order was unnecessary and costs should be awarded to him.  Those memoranda have now been put before
me.

1	Sainsbury Logan & Williams v Bell HC Wellington CIV-2009-091-197, 8 June 2012.
2	Sainsbury Logan & Williams v Bell [2013] NZHC 1311.

SAINSBURY LOGAN & WILLIAMS v BELL (Costs) [2013] NZHC 1513 [21 June 2013]

[4]       Mallon J’s judgment sets out the background to these matters, including the application I heard on which costs are now sought.  I therefore turn directly to that question of costs.

[5]       During the course of my hearing of the plaintiff ’s application on 7 June 2012, it became apparent that part of the difficulty between the plaintiff and the defendant was  Mr Bell’s  position  that,  as  Sainsbury  Logan  &  Williams  were  his  former solicitors, they already had copies of most, if not all, of the documents relating to matters between them.  Something of Sainsbury Logan & Williams’ position can be inferred from an affidavit of Mr Macfarlane, a partner in the firm, in support of the application in which he stated:

A significant part of the defendant’s counterclaim turns on what he claims his instructions have been.  This involved not only written communications to and from him (hard copy and electronic), but also handwritten notes he would sometimes bring to meetings with me, but of which he would not always provide a copy.

The plaintiff does not trust the defendant in respect of documentation, its existence (or not), and authenticity.   It does not expect to have documents (including records of communications) sprung on it when discovery is supposed to be complete, nor to have it alleged by the defendant that he did not get documents (including faxes or emails) from the plaintiff.

[6]       In his written submissions, Mr Leman, reflecting that concern, explained:

This continued resistance to provision of a proper list, including the documents he had either from the plaintiffs as his solicitors or which were the originals of those he had sent to them, prompted the plaintiff to make enquiry for examples of obvious sources of probably existing relevant documents ...

[7]       As, however, I pointed out at the hearing and noted in my minute, an affidavit of documents need not include “correspondence that may reasonably be assumed to be in the possession of all the parties”.  Mr Bell’s sense that there was little point in his listing such documents is, therefore, understandable.

[8]       At the same time I concluded an order was appropriate because:3

In exchanges with Mr Bell it became apparent, however, that he does have a documentary  record  relating  to  this  proceeding  which  I  am  satisfied  is

3 Sainsbury Logan & & Williams v Bell above n1, at [11]-[12].

discoverable and liable to be inspected by Sainsbury Logan & Williams. Whilst Mr Bell may not consider the contents of it relevant, it is not his assessment of relevance that is determinative.  Moreover, the fact that he is prepared to take the risk he may not be able to rely on undiscovered documents does not answer Sainsbury Logan & Williams’ concerns: undiscovered documents may be adverse to Mr Bell.

[9]       Against this background, I am not persuaded that I should make the order for scale costs of $7,300 against Mr Bell as sought by Sainsbury Logan & Williams.  I have reached that conclusion for two reasons:

(a)       I did not make the unless order Sainsbury Logan & Williams sought.

(b)	By purporting to require Mr Bell to list documents sent by Sainsbury Logan & Williams to him, or vice versa, Sainsbury Logan & Williams would	appear   to   have   overlooked   the   provision   of   (now) HCR8.16.5(b) (then HCR8.21.3(b)) that schedules need not include correspondence that may reasonably be assumed to be in the possession of all parties.

[10]     At the same time, I am not in a position to conclude on the papers before me, as  Mr Bell  continues  to  assert  and  as  he  asserted before Mallon  J,  that  further discovery was unnecessary.  I formed a view on that matter at the hearing.  I note Mallon J’s comments on subsequent discovery tussles between the parties and her references  to  the  documentation  in  fact  now  made  or  to  be  made  available  by Mr Bell to Sainsbury Logan & Williams not listed in the affidavit challenged before me. That narrative confirms the view I reached.

[11]     In the circumstances, I think a reduced costs order is appropriate.  I therefore order that Mr Bell pay Sainsbury Logan & Williams costs and disbursements of
$2,000 (GST inclusive) on its interlocutory application.

“Clifford J”

Solicitors:
Sainsbury Logan & Williams, Napier for the plaintiff

Copy to: Mr R A Bell, defendant