IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE
CIV-2019-404-002814
[2021] NZHC 1193

UNDER The Companies Act 1993

BETWEEN LOUISA JANE O’BRIEN, on behalf of

GENERAL DYNAMICS CORPORATION
LIMITED
First Plaintiff

LOUISA JANE O’BRIEN

Second Plaintiff

AND KEVIN PARKINSON

First Defendant

KEVIN PARKINSON, as trustee of KEVIN

PARKINSON FAMILY TRUST
Second Defendant

ANNA VALERIENA KEDRINSKAIA and

LISTON TRUSTEE SERVICES LIMITED,
as trustees of ANNA KEDRINSKAIA
TRUST
Third Defendants

Hearing: 21 April 2021

Appearances: J McCartney for Plaintiffs (CIV-2019-404-002814) and

Defendants (CIV-2020-404-002351)
S Morris and S Dodds for Defendants (CIV-2019-404-002814)
S Jefferson QC for Plaintiffs (CIV-2020-404-002351)

Judgment: 27 May 2021

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

O’BRIEN v PARKINSON & ORS [2021] NZHC 1193 [27 May 2021]
 CIV-2020-404-002351

UNDER The Property (Relationships) Act 1976

BETWEEN KEVIN JAMES PARKINSON

Plaintiff

AND LOUISA JANE O’BRIEN

First Defendant

GENERAL DYNAMICS LIMITED

Second Defendant

KEA GNSS LIMITED

Third Defendant

KEVIN JAMES PARKINSON, as trustee

of the KEVIN PARKINSON FAMILY
TRUST
Fourth Defendant

LOUISA JANE O’BRIEN, as trustee of

the LOUISA PARKINSON FAMILY
TRUST
Fifth Defendant

ANNA VALERIENA KEDRINSKAIA

and LISTON TRUSTEE SERVICES
LIMITED, as trustees of ANNA
KEDRINSKAIA TRUST
Sixth Defendants

This judgment was delivered by Associate Judge Andrew

on 27 May 2021 at 9.30 am
pursuant to r 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….
Introduction

[1] These are relationship property and shareholder derivative proceedings under
s 165 of the Companies Act 1993. They arise out of the dissolution of the marriage
between Ms O’Brien and Mr Parkinson following a relationship of 29 years.

[2] Ms O’Brien claims that following their separation in 2013, Mr Parkinson

caused General Dynamics Corporation Ltd (GDC) – owned by the respective family
trusts – to cease trading. She says that he then incorporated another company just one
month later, which took over the business and trading of GDC.

[3] Ms O’Brien contends that Mr Parkinson’s actions in transferring the property

of GDC and its profits to interests associated with him was in breach of his fiduciary
duty. She claims a resulting trust in relation to a property in Heuchan Lane, Wanaka
that is owned by the third defendant trustees. One of those trustees, Ms Anna
Kedrinskaia, is the de facto partner of Mr Parkinson. Ms O’Brien also seeks orders
under s 44 of the Property (Relationships) Act 1976 setting aside the disposition of the
Wanaka property to the trustees and other dispositions relating to GDC.

[4] There are five interlocutory applications for determination:

CIV-2020-404-2351 (Property (Relationships) Act (PRA) proceeding):

(a) Joinder of Anna Kedrinskaia and Liston Trustee Services Ltd;

(b) Strike out/costs for non-compliance with discovery orders;

(c) Application by Mr Parkinson to strike out Ms O’Brien’s application to

strike out (ie a cross-strike out claim);

CIV-2019-404-2814 (Companies Act proceeding):

(d) Further and better discovery from the first-third defendants; and

(e) Non-party discovery.

Factual background

[5] A comprehensive factual background is set out in my judgment of 14 July

2020, granting leave to Ms O’Brien to bring the s 165 shareholder derivative
proceedings. 1

[6] Ms O’Brien and Mr Parkinson commenced their relationship in 1984. They

were married in 1994 and separated in 2013.

[7] GDC was incorporated in about 1981. The nature of the GDC business and
what Ms O’Brien says are successor companies is at issue between the parties. It was
an electronic engineering company whose role, Mr Parkinson says, was predominantly
to provide contractual professional engineering. Ms O’Brien says that GDC was
involved in the design, development, manufacture and supply of electronic systems.

[8] On 28 November 2013, Mr Parkinson entered into an agreement for sale and
purchase to buy the land at 21 Heuchan Lane, Wanaka. The purchase price was
$525,000. The trustees of the Anna Kedrinskaia trust are the current registered
proprietors.

[9] The trustees are also the registered proprietors of property at 4 Kingstone
Street, Wanaka. It was purchased by them in 2018. The Heuchan Lane property is
security, in part, for the mortgage the trustees have over the Kingstone Street property.

[10] In November 2017, Mr Parkinson applied for orders in the Family Court under
the Property (Relationships) Act to determine and divide the relationship property on
a 50/50 basis.

[11] Attached is a schedule detailing the procedural history of both the PRA
proceedings and the Companies Act proceedings since that time.

[12] In the Companies Act proceedings (CIV-2019-404-2814), Ms O’Brien alleges,

as a first cause of action, breach of fiduciary duty, contending that Mr Parkinson
removed or took property or profits of GDC for his benefit or for the benefit of
interests associated with him. In her second cause of action, she alleges that
Mr Parkinson breached s 131 of the Companies Act by failing to act in the best

1
O’Brien v Parkinson & Ors [2020] NZHC 1681 at [7]–[28].
interests of GDC, that he breached s 135 of the Companies Act for causing or allowing
the business of GDC to be carried on in a manner likely to cause substantial risk of
severe loss to the company’s creditors, and that he breached s 301 of the Companies
Act 1993 by misapplying property of GDC.

[13] By way of remedy, Ms O’Brien seeks judgment for the sum represented by
GDC property, value and profits diverted by Mr Parkinson or, alternatively, an
accounting to determine the quantum of such property, value and profits diverted by
him.

[14] In the third cause of action, namely one of dishonest participation, receipt and
assistance, Ms O’Brien seeks against the trustees a resulting trust and an order
directing the trustees to transfer the property into the names of GDC.

[15] In the PRA proceedings (ie the third amended cross-application CIV-2020-404-
2351) Ms O’Brien seeks to trace what she says is the relationship property, business
and profits that originated in GDC to the accounts operated by and/or for the benefit
of Mr Parkinson and Ms Kedrinskaia (whether in her personal trustee capacity and
including to 21 Heuchan Lane, Wanaka). She also seeks to trace all other profits
generated following the purchase of 21 Heuchan Lane and whether by GDC, or any
successor company. She seeks declarations that she holds interests in 21 Heuchan
Lane based on contributions to the purchase price and/or the reduction of the mortgage
and she seeks orders transferring and restoring the property to herself. She seeks to
set aside a number of dispositions under s 44 of the Property (Relationships) Act,
including the transfer of 21 Heuchan Lane to the trustees and the nomination by
Mr Parkinson to the trustees (with the result that the property reverts to Mr Parkinson).

Application by Ms O’Brien (as first defendant) for joinder of Anna Kedrinskaia

and Liston Trustee Services Ltd as parties to the PRA proceedings - CIV-2020-
404-2351

[16] The application for joinder of Anna Kedrinskaia and Liston Trustee Services
Ltd was filed in the Family Court on 23 March 2020.

[17] The relevant Family Court rule is r 133 of the Family Court Rules 2002. That
rule provides:
 Striking out and adding parties

(1) The Court may, on its own initiative or on an interlocutory application

for the purpose, at any stage of the proceedings, and on any terms that the
court considers just,–

(a) order that the name of a party improperly or mistakenly joined

(whether as applicant or as respondent) be struck out:

(b) order that the name of a person who ought to have been joined, or
whose presence before the court may be necessary to enable the court
effectually and completely to adjudicate on and settle all questions
involved in the proceedings, be added, whether as applicant or as
respondent.

(2) However, nothing in subclause (1)(b) authorises the addition of a

person as applicant without that person's consent.

[18] The equivalent High Court Rule is r 4.5(6) of the High Court Rules 2016.

[19] The approach to joinder is a liberal one, with the object of the rules being to
provide for the inclusion of necessary parties. 2

[20] In the relationship property proceedings, Ms O’Brien alleges that Ms

Kedrinskaia and Liston Trustee Services Ltd received property and profits that
represent and can be traced to original relationship property. That is, the property and
business of GDC.

[21] Ms O’Brien’s pleading claims directly against the property at 21 Heuchan

Lane, registered in the names of Anna Kedrinskaia and Liston Trustee Services Ltd.

[22] In the circumstances, it is abundantly clear that it is necessary to join both Anna
Kedrinskaia and Liston Trustee Services Ltd as parties to the relationship property
proceedings. As Ms McCartney submitted, if the dispositions Ms O’Brien challenges
are set aside under s 44 of the PRA, then Ms Kedrinskaia and Liston Trustee Services
Ltd will need to be before the Court as parties. Their rights as the current registered
owners will be directly affected by any orders of that kind. Both Ms Kedrinskaia and
Liston Trustee Services Ltd are, of course, already parties to the Companies Act
proceedings (CIV-2019-404-2814).

2
Westfield Freezing Co Ltd v Sayer & Co NZ Ltd [1972] NZLR 137 (CA) at 147.
[23] The amended opposition to the application lacks merit. The question of
whether Ms O’Brien can obtain relief under s 44 of the PRA 1976 is a trial issue. Her
claims are clearly arguable, and the joinder application cannot properly be resisted on
the basis that there is no tenable relationship property claim in relation to Heuchan
Lane.

[24] I accordingly grant the application for joinder and order that Anna Kedrinskaia
and Liston Trustee Services Ltd are joined to the PRA proceedings (CIV-2020-404-
2351). The addition of those parties is necessary to do justice between those already
party to the proceedings.

Application by Ms O’Brien to strike out Mr Parkinson’s defence and/or costs for

non-compliance with discovery orders (CIV-2020-404-2351) – and cross-
application by Mr Parkinson to strike out Ms O’Brien’s strike out application
(CIV-2020-404-2351)

[25] Under r 7.48 of the High Court Rules the Court has broad powers to make such
orders as may be required in the interests of justice where its orders are not complied
with. The Court may make any order the Judge thinks just, including striking out a
pleading or entering judgment if a party consistently fails to comply with a discovery
order. 3

[26] In the Court of Appeal in Parlane v Hayes, 4 Miller J held, in referring to r 7.48:

The question is what the interests of justice require. They include, as this
Court held in SM v LFDB, 5 which dealt with “unless” orders, the interests of
the injured party, notably in terms of delay and wasted costs, any injustice to
the defaulting party, and the public interest in administering justice without
unnecessary delay and expense.

[27] Miller J further held: 6

… case management is a means to an end: the prompt and just disposition of

cases, including a merits judgment for those that reach hearing. To
compromise irretrievably a party’s right to a merits judgment for failure to
meet some procedural obligation is a serious step that should be taken only
when necessary to do justice to the other interests at stake.

3
Kidd v van Herren [2019] NZCA 275, (2019) 24 PRNZ 596 at [41].
4
Parlane v Hayes [2015] NZCA 341 at [30].
5
SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494 at [31(f)].
6
Parlane v Hayes, above n 4, at [31].
[28] For reasons set out below, I find that there has been a failure by Mr Parkinson
to comply with his discovery obligations. However, the high threshold that must be
reached to take the “serious step” to strike out Mr Parkinson’s defence has not been
met. This case is not the same or in substance similar to SM v LFDB, 7 where the
respondent continued not to adhere to an unless order and filed a series of applications
to stay a second unless order. The Court commented that the respondent’s actions
constituted a “protracted game of ‘chicken’ with the Court”. 8

[29] In this case there have thus far been no “unless orders” and, although
Mr Parkinson’s breach of his discovery obligations have been serious and substantial,
I decline to strike out his defence. The better approach, which I address below, is to
determine that costs should be paid by Mr Parkinson to Ms O’Brien and that he be
required to provide further and better discovery.

[30] As to Mr Parkinson’s application to strike out Ms O’Brien’s strike out

application (i.e. his cross claim), that too must be dismissed. Such application appears
to have been a tactical one. In the circumstances, there is no need for me to address
that issue further.

Application by plaintiffs (GDC and Ms O’Brien) for particular discovery (r 8.19)

CIV-2019-404-2814

[31] The categories of documents sought by Ms O’Brien that now remain at issue
has reduced somewhat since her application of 12 February 2021. I deal below with
each of the particular outstanding categories. However, before I do so, I address the
relevant legal principles and how they apply in the broader context of these
proceedings.

Relevant legal principles

[32] Rule 8.19 of the High Court Rules reads:

Order for particular discovery against party after proceeding

commenced

If at any stage of the proceeding it appears to a Judge, from evidence or from

the nature or circumstances of the case or from any document filed in the
proceeding, that there are grounds for believing that a party has not discovered

7
SM v LFDB [2013] NZHC 3105.
8
At [10]; cited in SM v LFDB, above n 5, at [24].
 1 or more documents or a group of documents that should have been
discovered, the Judge may order that party –

(a) to file an affidavit stating –

(i) whether the documents are or have been in the party’s control;
and

(ii) if they have been but are no longer in the party’s control, the
party’s best knowledge and belief as to when the documents
ceased to be in the party’s control and who now has control of
them; and

(b) to serve the affidavit on the other party or parties; and

(c) if the documents are in the person’s control, to make those documents
available for inspection, in accordance with rule 8.27, to the other party or
parties.

[33] The starting position is a presumption that the affidavits of documents already
filed are conclusive. The party seeking further discovery has the onus to establish that
the existing affidavit of document(s) is incomplete. 9

[34] The court conventionally adopts a four-stage approach in considering an

application under r 8.19: 10

(a) Are the documents sought relevant, and if so, how important will they
be?

(b) Are there grounds to believe that the documents sought exist? This will
often be a matter of inference. How strong is that evidence?

(c) Is discovery proportionate, assessing proportionality in accordance

with Part 1 of the Discovery Checklist in the High Court Rules?

(d) Weighing and balancing these matters, in the Court’s discretion

applying r 8.19, is an order appropriate?

9
McCullagh v Robt Jones Holdings Ltd [2015] NZHC 1462, (2015) 22 PRNZ 615 at [7].
10
Assa Abloy NZ Ltd v Allegion (NZ) Ltd [2015] NZHC 2760 at [14]; see also Lighter Quay
Residents’ Society Inc v Waterfront Properties (2009) Ltd [2017] NZHC 818 at [16].
[35] Further and helpful principles for determining the discovery application in this
case were described by the Court of Appeal in Biggs v Biggs, 11 (also a relationship
property proceeding) as follows:

(a) Discovery should be proportionate to the subject matter and the parties
must co-operate to facilitate discovery and manage its scope and
burden; 12

(b) There is no need to gloss the High Court Rules by emphasising a need
for co-operation and economy in relationship property litigation, since
the rules are now well aligned with the objectives of the PRA. It
envisages that the parties will disclose relevant property and co-operate
in ascertaining and dividing relationship property as inexpensively,
simply and speedily as possible; 13

(c) Relationship property litigation may exhibit characteristics that bear on

discovery and may call for judicial management. This is always a
question of fact. For example, one party, usually the wife, may have a
valuable interest in property the details and value of which she knows
little about.

[36] In Dixon v Kingsley, 14 Kós J, in relationship property litigation, held that a

“robust approach” should be taken to discovery consistent with the purposes and
principles of the PRA: the need for just division, but also inexpensive and efficient
access to justice. He also held that more substantial discovery may well be ordered
by the Court where it has reason to believe that a party has concealed information or
otherwise sought to mislead either the other party or the Court as to the scope of
relationship property.

Application of the legal principles

[37] The context for applying all of these principles in this case is the troubling
procedural history since the PRA proceedings were first filed in the Family Court in

11
Biggs v Biggs [2018] NZCA 546 at [30]–[31].
12
High Court Rules 2016, r 8.2.
13
Property (Relationships) Act 1976, s 1N(d).
14
Dixon v Kingsley [2015] NZHC 2044 at [20].
2018. That includes two further affidavits of documents from Mr Parkinson and
Ms Kedrinskaia, sworn very recently on 14 April 2021, disclosing some further 650
documents.

[38] The assessment of relevance and importance is not to be determined by

reference solely to the opposing party’s theory of its case or its statement of defence.
The touchstone for relevance is the pleadings and, in particular, the issues defined by
the pleadings – and it is the case of the party seeking discovery (here Ms O’Brien) that
is assumed to be true. 15

[39] The fundamental problem with the opposition by Mr Parkinson, the trustees
and Ms Kedrinskaia to the r 8.19 application is that they seek to define relevance by
their defence of both proceedings without due recognition given to the truly arguable
matters at issue between the parties. This includes, as I held in my judgment of July
2020, 16 an arguable case for a claim by Ms O’Brien to a resulting trust in Heuchan
Lane and an arguable claim under s 44 of the PRA 1976 for orders setting aside various
dispositions, including those relating to Heuchan Lane. As Ms McCartney submitted,
Ms O’Brien’s claims all involve established causes of action. 17

[40] The explanation of the trustees, Mr Parkinson and Ms Kedrinskaia, as to how

the acquisition of Heuchan Lane was purchased and their claim that Mr Parkinson has
no beneficial interest in it, might ultimately prove to be correct. However, that is
clearly a trial issue and not an answer, at this interlocutory stage, to the r 8.19
application. All of the evidence, including the belatedly disclosed trustee resolution
of 29 April 2014, 18 and the clearly arguable intermingling of funds between the various
ASB bank accounts of Ms Kedrinskaia, are all important matters going to the critical
issue of tracing and beneficial ownership, and will need to be tested at trial.

15
Robert v Foxton Equities Ltd [2014] NZHC 726.
16
O’Brien v Parkinson & Ors, above n 1.
17
They include claims similar to those made in Clayton v Clayton [2015] NZCA 30, [2015] 3 NZLR
293; Nation v Nation [2005] 3 NZLR 46 (constructive trust); and Regal Castings Ltd v Lightbody
[2008] NZSC 87, [2009] 2 NZLR 433 (s 44 of the Property (Relationships) Act).
18
That resolution records that the purpose of the transaction [purchase of the Heuchan Lane
property] is for the Trust to purchase and hold the property as a bare trustee for Anna Valeriena
Kedrinskaia and Kevin Parkinson. The resolution was adopted one day before the settlement of
the purchase on 30 April 2014 and the registration of the title in the name of the trustees. In her
affidavit in the Family Court, Ms Kedrinskaia claimed that Mr Parkinson had no beneficial interest
in Heuchan Lane but no reference was made to the 30 April 2014 resolution, which at that time
had not been disclosed.
[41] In addressing the Assa Abloy 19 criteria, and, in particular, the issue of whether
there are grounds to believe that the documents sought exist, Ms McCartney contended
that Mr Parkinson had deliberately withheld relevant documents and that his evidence
about them when requests were made, is dishonest. She further submitted that his and
Ms Kedrinskaia’s accounts about the beneficial ownership of the Heuchan Lane
property are dishonest and that documents to support the accounts are fraudulent.

[42] Those are, of course, serious allegations. I accept that there is a proper
evidential basis to support them, 20 but these claims are trial issues and it would not be
appropriate in the context of these interlocutory applications to make any particular
findings about them. However, I do find that on the evidence before me, that both
Mr Parkinson and Ms Kedrinskaia can properly be regarded as unreliable witnesses
and the starting position of a presumption that their affidavits of documents are
conclusive has been rebutted. There is a sound evidential basis for concluding that
disclosure to date has been incomplete and that the efforts made by Mr Parkinson and
Ms Kedrinskaia to meet their discovery obligations have been inadequate. For
example, no adequate explanation has been provided for the late disclosure of the 2014
trustee resolutions and Mr Parkinson’s claim that the mortgage on Heuchan Lane was
repaid in full in 2018 was an incomplete explanation. He did not refer to the very
relevant factor that Heuchan Lane was then used as security for the purchase of the
property in Kingstone Street.

[43] I am of the view that it has been clear since the 2018 discovery application in
the Family Court, that Ms O’Brien has been seeking documents relating to the
acquisition and funding of the purchase of Heuchan Lane and to what she says is the
diversion of relationship property proceeds to GDC and successor companies. She
has, to her credit, been dogged in her attempts to obtain the necessary documentation
and the results of that determination, now in the form of documents before the Court,
provides further evidential basis for her claims and further undermine the contrary
contentions advanced by Mr Parkinson that her claims have no prospect of success.

[44] On the basis of the protracted and lengthy procedural history of this case I find
that Mr Parkinson has been in breach of his obligations under the High Court Rules to

19
Assa Abloy NZ Ltd v Allegion (NZ) Ltd, above n 10.
20
Schmidt v Pepper NZ (Custodians) Ltd [2012] NZCA 565.
co-operate (r 8.2) and the parallel obligations under the Property (Relationships) Act
to disclose relevant property and co-operate in ascertaining and dividing relationship
property as inexpensively, simply and speedily as possible. On the odd occasion, the
requests made by Ms O’Brien may have overreached but that does not justify the
obstructive approach taken by Mr Parkinson and Ms Kedrinskaia and, in particular,
the serial delayed and drip-feed manner of providing discovery through multiple
affidavits of documents. 21 This includes the critical ASB Orbit bank statements, being
the bank account for the mortgage over Heuchan Lane, which were only provided, and
on an informal basis, on 30 November 2020. 22 It is equally clear that Mr Parkinson’s
affidavit of assets and liabilities initially filed in the Family Court was incomplete. He
did not disclose, as he should have, his Australian bank accounts.

[45] I agree with Ms Morris that the shareholder derivative proceedings are
“relatively fresh” (i.e. filed some time after the PRA proceedings) and that my
discovery orders were only made in those proceedings in August last year. However,
that provides no justification for the approach adopted by Mr Parkinson and
Ms Kedrinskaia. In their affidavits of documents filed on 28 October 2020,
Mr Parkinson produced 84 documents and Ms Kedrinskaia 121. Discovery was not
complete. On 30 November 2020, and during the course of settlement negotiations,
they provided further informal discovery. I accept that this was on the basis that formal
discovery would follow. This included a number of bank statements for GDC,
Mr Parkinson’s invoices for his consultancy services and bank statements from
Ms Kedrinskaia’s ASB Orbit account. Such documents were, however, clearly
relevant and ought to have been provided in the original affidavits of documents. 23
Furthermore, as noted, as recently as 14 April 2021, Mr Parkinson and Ms Kedrinskaia
both provided substantially further documents.

21
The total number of affidavits of documents filed by Mr Parkinson and Ms Kedrinskaia in the
shareholder derivative proceedings is six (i.e. three each).
22
I also note that it was not until 9 September 2020 that Mr Parkinson provided, as part of the Family
Court discovery, copies of statements for ASB bank accounts in the name of Anna Kedrinskaia
numbered 12-3030-766262-50, -52 and -53. Those bank accounts are clearly relevant to the
contentions of Ms O’Brien that profits of GDCL and other successor companies were being
diverted.
23
See also Affidavit of Lorraine Mary Casey affirmed 10 November 2020, referring to documents
provided by way of discovery from Ms Kedrinskaia in her Affidavit of Documents dated 28
October 2020. The affidavit listed documents of direct relevance to the Heuchan Lane purchase
and Mr Parkinson’s interest in it.
[46] I reject Ms Morris’ submission that the most recent affidavit of documents of
Mr Parkinson and Ms Kedrinskaia of 14 April 2021 contain non-relevant material but
were filed on a “pragmatic basis” to try and avoid unnecessary cost and expense. In
my view the documents only recently disclosed were always relevant. I have already
referred to the initial application for discovery in the Family Court as putting all parties
on notice as to the matters in dispute.

[47] In addition, there have been a number of further applications and memoranda
from Ms McCartney on behalf of Ms O’Brien setting out very clearly the types of
documents that she is seeking and the basis for the contention that they are relevant.
This includes the checklist that I annexed to my minute of 10 August 2020, when I
made an order for discovery in the CIV-2019-404-2814 proceedings. 24

[48] The complaints that Mr Parkinson and Ms Kedrinskaia make about

Ms O’Brien’s “repeated” and “wide-ranging” requests for documents and ones
directed at entities not parties to the proceeding are of a highly technical nature and
ultimately lacking in any real merit. As the Court of Appeal noted in Biggs v Biggs, it
is not unusual that one party, usually the wife (and here Ms O’Brien) has little
knowledge of the detail and value of property and assets which might legitimately be
the subject of a relationship property claim. The approach of Ms O’Brien is entirely
understandable and justified.

[49] I also reject Mr Parkinson’s submission that the two proceedings here are
“fundamentally distinct” with different discovery obligations. I accept that in
principle the proceedings are different, but the claim they are fundamentally distinct
is, in the context here, an unhelpful overstatement and an artificial one. Here there is
substantial overlap between the two proceedings and the fundamental matters at issue
are of a substantially similar nature. A claim that the proceedings are distinct cannot
be used as an excuse to fail to comply with the duties of co-operation and the need to

24
See also Memorandum of Ms McCartney QC dated 9 December 2019 (75 categories of documents
sought); Memorandum of Counsel for Mr Parkinson dated 10 December 2019, confirming his
agreement to provide some of the documents; see Memorandum of Mr Parkinson dated 18 January
2020 (on discovery); see also Memorandum of Ms McCartney dated 5 October 2020 (amended
discovery checklist); see also Affidavit of Ms O’Brien dated 25 August 2020 (updating the Court
on discovery defaults).
provide disclosure that ensures the inexpensive, simple and speedy division of
relationship property.

[50] Against all of that background, I now turn to address each of the particular
outstanding categories of discovery. This has regrettably been more difficult and
challenging than should have been the case, because of a continuing lack of
cooperation between the parties.

[51] At the conclusion of the hearing, I directed that the parties were to confer with
a view to filing a joint memorandum recording their agreement as to those categories
of documents which should be provided – and with a corresponding reduced list of
outstanding categories for me to address.

[52] In response, I received further and separate memoranda from the parties with
lengthy schedules (contrary to my expectations), which are not easy to reconcile but,
nevertheless, must be addressed. In the circumstances I adopt a robust approach,
informed by the general findings I have made above, and with a view to ensuring that
all outstanding discovery issues are now brought to a conclusion.

[53] It is apparent from the amended schedules received that it is agreed that a
number of the outstanding categories are relevant. What is at issue in many instances
is Mr Parkinson’s and the trustees’ position that documents that Ms O’Brien seeks,
have already been produced or there is no basis for inferring that further documents
exist. Also at issue is whether there is a need for a consolidated affidavit of documents.

[54] I address the particular categories in terms of the following three schedules:

(a) Schedule A (PRA proceeding CIV-2020-404-2351) – discovery sought

by Ms O’Brien from Mr Parkinson;

(b) Schedule B (Companies Act proceeding CIV-2019-404-2814) –

discovery sought by Ms O’Brien from the first and second defendants,
namely Mr Parkinson in his personal and trustee capacity;

(c) Schedule C (Companies Act proceeding CIV-2019-404-2814) –

discovery sought from the third defendants, namely the trustees of the
Anna Kedrinskaia Trust.
[55] In making the orders set out in the following schedules, I am satisfied that the
four relevant criteria in Assa Abloy NZ Ltd v Allegion, 25 have been made out. This
includes findings that there is a proper basis for inferring that the documents sought
exist and they are sufficiently important to order their production.

Schedule A – PRA proceedings – CIV-2020-404-2351 - discovery sought from

Mr Parkinson

Item Description Order of the Court

1 Bank statements and
financial accounts for GD
Corp from 2017 to date.
2 Statements for all
Australian and other
accounts in Mr Parkinson’s
name from January 2012 to
May 2013.
3 Statements for credit cards
and debit cards in Mr
Parkinson’s name being
Global Plus.
4 Bank statements for
accounts into which monies
of GD Corp were credited.
5 Loan facility or mortgage
account involved with the
purchase of 21 Heuchan
Lane, Wanaka.
6 Bank accounts associated
with Mr Parkinson and/or
his interests out of which
legal costs are being paid.
7 Bank accounts associated
with Mr Parkinson’s
interests out of which
Global Plus Visa and Amex.
8 NZ Customs Service
passenger movements for
Mr Parkinson from 1 May
2012 to date.
I order that these documents are to be provided. This is to
include further statements from 1 April 2020 to the present
date.
I order that these documents are to be discovered. They are
to include bank statements from the ANZ branch UNSW
account 2001-64173 and account 5215-48223 and any other
account held by Mr Parkinson.
I order that these documents are to be discovered. I record the
parties’ agreement that this category is relevant.
I order that these documents are to be discovered. I record the
parties’ agreement that this category is relevant.
I order these documents are to be discovered.
I order that these documents are to be discovered but with the
legal fee payments redacted. 26
I order that these documents are to be discovered. I record the
parties’ agreement that this category of documents is relevant.
I order that these documents are to be discovered. I record Mr
Parkinson’s agreement to copy in counsel for Ms O’Brien to
his request to NZ Customs Service for his travel records and
that he is to ask that the travel records are provided to him and
counsel for the parties simultaneously.

25
Assa Abloy NZ Ltd v Allegion, above n 10.
26
At the hearing, Ms McCartney agreed to the redaction of the legal fee payments. I see no need in
the circumstances for any confidentiality orders. The position is covered by the redaction I have
directed.
Schedule B – Companies Act proceedings – CIV-2019-404-2814 - discovery sought
from first defendant Mr Parkinson in his personal and trustee capacity
Item Description
1 All bank accounts in NZ and
overseas in Kevin Parkinson’s name
and that he is a signatory of.
Statements of account 12-3034-
0829603-51.
Statements of account 12-3034-
0829603-00
2 Statements for credit cards in Mr
Kevin Parkinson’s name.
Statements for credit cards the
Mastercard paid from Anna
Kedrinskaia’s account 12-2030-
0766262-52.
BNZ credit card paid out of Anna
Kedrinskaia’s account 12-2030-
0766262-52.
3 Letter of authority to NZ Customs
to show Mr Parkinson’s travel
records from 1 January 2012.
4 Copies of all NZ Courier invoices
and statements from 1 January 2013
for GD Corp.
Copies of all NZ Courier invoices
and statements from 1 January 2013
for GDL and Kea GNSS.
5 Copies of FEDEX invoices to GD
Corp from 1 January 2013.
Copies of FEDEX invoices to GDL
and Kea GNSS from 1 January
2013.
6 Copies of applications for bank
funding or borrowing including for
the Heuchan Lane, Wanaka
property and any other property
purchased from 1 January 2013.
Order of the Court
I order that these documents are to be discovered. I
record the parties’ agreement that this category is
relevant.
I record Ms O’Brien’s position that she will seek
discovery of these documents from the t third
defendant trustees, namely the trustees of the Anna
Kedrinskaia Trust.
I record Ms O’Brien’s position that she will seek
discovery of these documents from the third
defendant trustees, namely the trustees of the Anna
Kedrinskaia Trust.
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered. If Mr Parkinson and the trustees’ position
is that the account 12-2030-0766262-52 does not
repay any credit card associated with BNZ, then a
sworn statement to that effect is required in a further
affidavit of documents.
I order that these documents are to be
produced/discovered in accordance with the orders set
out in relation to Schedule A.
I order that all documents in this category are to be
discovered.
I order that all documents in this category and within
Mr Parkinson’s control are to be discovered by him.
To the extent that Mr Parkinson does not have control
of such documents, then a sworn statement to that
effect is required.
I order that these documents are to be discovered. I
record the parties’ agreement that these documents are
relevant. To the extent that Mr Parkinson claims that
no further documents exist in this category (beyond
those already produced) then a sworn statement to that
effect is required.
I order the documents in this category are to be
discovered. To the extent that Mr Parkinson is not in
control of these documents, then he is required to file
and serve a sworn statement to that effect.
I order the documents in this category are to be
produced.
7-8 Copies of original invoices to
GPSAT Systems Ltd and Gravity
Ltd from 1 January 2013.
Copies of original invoices to PMS
Ltd from 1 January 2013.
9 Copies of original invoices and
shipping confirmation for all
supplies from PMS Ltd from 1
January 2013 to:
(a) Kevin Parkinson
(b) GDL
(c) GD Corp
(d) Other interests associated with
Mr Parkinson.
10 Copies of original invoices and
statements including shipping
information for all suppliers that
provide services and products
including Triode Group Ltd from 1
January 2013 to:
(a) GDL;
(b) GD Corp; and
(c) Mr Parkinson or any interests
associated with him.
11 Financial accounts for GD Corp for
the year ending 31 March 2020.
31 March 2021
12 All documents produced to Des
Chia for the purpose of preparing
the accounts for:
(a) Mr Parkinson and GD Corp
(b) GDL
13 All breakdowns prepared and
produced by Des Chia including
trial balances.
14 Copy of detailed general ledger
showing all transactions by account
for:
(a) KP;
(b) Kevin Parkinson Family Trust;
(c) GD Corp; and
(d)GDL
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered. If there are no further documents in this
category because PMS Ltd ceased trading after 31
March 2014, then Mr Parkinson is to provide a sworn
statement to that effect.
I order that documents in this category are to be
discovered. If there are no documents in this category
after 31 March 2014, then Mr Parkinson is to file and
serve a sworn statement to that effect.
(a) I order that documents in this category are to be
discovered.
(b) I order that documents in this category are to be
discovered.
(c) I order that documents in this category are to be
discovered.
I order that documents in this category are to be
produced and on an ongoing basis. I record the
parties’ agreement that documents in this category are
relevant.
I order that documents in this category are to be
discovered and on an ongoing basis. I record the Mr
Parkinson’s agreement that GD Corp’s financial
accounts for the year ending 31 March 2021 will be
produced once finalised.
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered
 15 Copy of all physical records in I order that documents in this category are to be
relation to the preparation of the discovered.
accounts for:
(a) Kevin Parkinson
(b) Kevin Parkinson Family Trust
(c) GD Corp

Copies of all physical and electronic I order that documents in this category are to be
records in relation to the preparation discovered.
of the accounts for GDL.

Copies of all electronic records in

relation to the preparation of the
accounts for Mr Parkinson and GD
Corp.
16 Copies of correspondence with IRD
in relation to Mr Parkinson, the
Kevin Parkinson Family Trust and
GD Corp.
I order that documents in this category are to be
discovered.
I decline to make any order in relation to this category.
I record Ms McCartney’s agreement at the hearing
that this category is about the non-payment of tax and
Ms O’Brien accepts that it is not going to affect value.

Copies of correspondence with IRD I decline to order discovery documents in this

in relation to GDL.
17 All GST returns for Mr Parkinson
and Kevin Parkinson Family Trust.
category.
I order that documents in this category are to be
discovered. To the extent that there are no documents
in this category, Mr Parkinson is to provide a sworn
statement to that effect.

GDL I order that documents in this category are to be

discovered.
18 All invoices for freight and courier I order that documents in this category are to be
for purchases and subcontracting discovered.
from 1 January 2013.

Schedule B – documents sought from the second defendant, Mr Kevin Parkinson, as

trustee of the Kevin Parkinson Family Trust

Item Description Orders of the Court

1 All statements for the bank account to
which the payment of $60,000 was made
from GDL 01-0790-0221261-00 to
Barter Law on 22 January 2014.
2 All financial accounts for the Kevin
Parkinson Family Trust.
3 Any amendments to the Kevin
Parkinson Family Trust deed.
4 All Kevin Parkinson Family Trust
trustee resolutions.
5 All Kevin Parkinson Family Trust
minutes.
I order that documents in this category are to be
discovered. I record Mr Parkinson’s agreement
that he will contact Barter Law to provide
statements relating to the receipt of the $60,000
transfer.
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered.
I order that the trustees are to provide discovery
of documents in this category.
I order discovery of documents in this category.
To the extent that documents do not exist, then a
sworn statement to that effect is to be provided by
Mr Parkinson.
Schedule C – Companies Act proceedings – CIV-2019-404-2814 - discovery sought by
Ms O’Brien from the third defendant trustees, the trustees of the Anna Kedrinskaia
Family Trust
Item Description
1 Any amendments to the Anna
Kedrinskaia Family Trust deed.
2 All Anna Kedrinskaia Family Trust
minutes.
3 All Anna Kedrinskaia Family Trust
resolutions and trust deeds.
The solicitor’s file and file notes
relating to the Anna Kedrinskaia
Family Trust deed of record prepared
in 2019 and 2020.
4 All bank account statements for the
Anna Kedrinskaia Family Trust from
1 January 2013 to date.
5 All financial accounts for Anna
Kedrinskaia Family Trust from 2012
to date.
6 All documents that establish the
purchase of plant for and on behalf of
GDL and purchase price/documents
showing transfer to:
(a) GDL
(b) GD Corp
(c) Other
7 All bank statements for Anna
Kedrinskaia from October 2013 to
December 2018: in her personal
capacity.
In her capacity of trustee of Anna
Kedrinskaia Family Trust.
8 Documents showing the assets of the
Anna Kedrinskaia Family Trust as at
1 January 2012 to date.
9 Documents showing liabilities and
borrowings of the Anna Kedrinskaia
Family Trust from 1 January 2012.
10 Documents showing sale and
disposal of assets of Anna
Kedrinskaia Family Trust from 1
January 2012 including solicitors
trust account ledgers.
Order of the Court
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered. I record Ms O’Brien’s agreement that
documents in this category were discovered on 14
April 2021, but I direct that they are to be included
in a consolidated affidavit of documents filed and
served on behalf of the trustees.
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered. To the extent that the defendant trustees
claim privilege, then such privilege is to be
described in terms of the orders I make on the issue
of privilege in this judgment (see [65] above).
I order that documents in this category are to be
discovered. This is to include bank account
statements for accounts where Ms Kedrinskaia has
allowed funds/revenue from either GDL or GD Corp
to be held in her name or the trustees’ name.
I order discovery of documents in this category.
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered.
I order that documents in this category are to be
discovered. This is to include account 12-3034-
0829603-51 to the extent that those documents are
in the control of Ms Kedrinskaia.
I order discovery of documents in this category.
I order that documents in this category are to be
discovered.
I order documents in this category are to be
discovered.
 11- Documents showing the application I order that documents in this category are to be
12 of the proceeds of sale or disposal of discovered.
assets of Anna Kedrinskaia Family
Trust into a bank account or other
from 1 January 2012.
13 The documents showing: I order that documents in this category are to be
(a) The source of funds of $140,000 discovered.
paid on 22 January 2014 to the trust
account of Barter Law
(b) The bank statements holding the
funds before payment to show the
source.
14 Documents showing the source of I order that documents in this category are to be
funds repaid on 26 November 2018: discovered.
(a) $89,000

(b) $150,000 I order that documents in this category are to be

discovered.

(c) For a period of 12 months I order that documents in this category are to be
beforehand for the $89,000. discovered.

(d) For a period of 12 months I order that documents in this category are to be
beforehand for the $150,000. discovered.

15 Copies of the Omni account that
replaced the Orbit account from the
date of start to present.
16 Copies of all application for funding
or borrowing from:
(a) Any bank
I order that documents in this category are to be
discovered except that legal fees may be redacted.
I order that documents in this category are to be
discovered.

(b) The purchase of the Wanaka
property
17 Copy of solicitor’s file for the
purchase of the Wanaka property.
18 Copies of all correspondence
requesting the letter from the ASB.
I order documents in this category are to be
discovered.
I order that documents in this category are to be
discovered.
I order that all documents in this category are to be
discovered.

Consolidated affidavit of documents

[56] I find that Mr Parkinson and Ms Kedrinskaia should be required to file

consolidated and updated affidavits of documents. There should be two affidavits:
one from Mr Parkinson, in both his personal and trustee capacity, the other from
Ms Kedrinskaia in both her personal and trustee capacity. Ms Kedrinskaia is of course
now a party to both proceedings. The affidavits should include all of the documents
relevant to both proceedings and be filed and served in both proceedings. The
documents to be discovered include, of course, those which are the subject of the
discovery orders I make in this judgment.
[57] I note that there are already electronic indexes and all entries are hyperlinked.
In the circumstances, and as a matter of proportionality, it would appear that
consolidated affidavits would not be particularly onerous to prepare.

[58] I acknowledge that in my directions made in the Companies Act proceedings,

I directed that Mr Parkinson and the trustees were not required to provide disclosure
of documents already discovered in the Family Court proceedings. That was
obviously an attempt to try and reduce unnecessary cost. However, given the failures
by Mr Parkinson and Ms Kedrinskaia to comply with their discovery obligations to
date, and the need for some rigour and order in relation to discovery (which to date
has been piecemeal and serial, as Ms McCartney described it), the better approach is
to require, as I do, consolidated affidavits of document.

[59] I direct that the parties are to confer and try and reach agreement on the issue
of inspection of the documents the subject of the consolidated affidavits of documents.
It may be because all the entries are hyperlinked that inspection is not really an issue.
Leave is reserved to apply to the Court for further directions if agreement cannot be
reached.

Challenge by Ms O’Brien to schedule appended to Mr Parkinson’s affidavit of

documents – listing of solicitor’s file – r 8.16(3)

[60] Ms O’Brien contends that Mr Parkinson’s affidavit of documents does not

sufficiently describe documents he has claimed as privileged and, in particular, the
solicitor’s file of Barter & Co. She contends that the description of the solicitor’s file
as a group document and claiming privilege in relation to that group does not meet the
requirements of r 8.16(3). That rule provides that the description of documents for
which privilege is claimed must be sufficient to inform the other parties of the basis
on which each document is included in the group.

[61] Ms O’Brien says that her concern about this issue arose after she became aware
of document AK110, which is an invoice from Barter & Co. That invoice relates to
services performed generally in relation to the purchase of Heuchan Lane. The
narration to the invoice includes a description of services involving the drafting of a
“property sharing agreement”. Ms O’Brien is naturally interested to know whether
the property sharing agreement relates to Heuchan Lane. The invoice is rendered to
both Mr Parkinson and the trustees.

[62] The solicitor’s file at issue is not the file of Morris & Co, the instructing
solicitors for Mr Parkinson and the trustees in both proceedings. Barter & Co were
the solicitors acting in relation to the Heuchan Lane purchase, a transaction and an
alleged s 44 Property (Relationships) Act disposition directly at issue in this litigation.
That is the context for applying subss 2 and 3 of r 8.16.

[63] In Vanda Investments Ltd v Logan, 27 Osborne AJ rejected an argument that

what is now r 8.16 does not require documents to be described in the list. His Honour
held that the adequate identification of discovered documents, in relation to privileged
documents, should achieve or facilitate the following purposes: 28

(a) To enable the opposite party to become aware of the documents

claimed to be privileged;

(b) To enable that party to meaningfully consider a challenge to the claim

of privilege.

[64] I accept the submission of Ms McCartney that Mr Parkinson has failed to file
a rule-compliant list of documents in relation to the Barter & Co file, because he has
failed to adequately identify the documents for which privilege was claimed. This is
not a case where the general description given is sufficient to enable the opposite party
(here Ms O’Brien) to determine whether the claim for privilege is properly based.

[65] For reasons set out below, I find that Mr Parkinson should be required to file a
consolidated affidavit of documents, one that is rule-compliant, and which adequately
identifies documents for which privilege is claimed. That will then allow Ms O’Brien
to meaningfully consider a challenge to the claim of privilege, should that become
relevant.

27
Vanda Investments Ltd v Logan HC Dunedin CIV-2009-412-219, 27 November 2009.
28
Vanda Investments Ltd v Logan, above n 27, at [48(c)(i)–(ii)].
Application by Ms O’Brien dated 12 February 2021 for non-party discovery
(r 8.21) – CIV-2019-404-2814

[66] Rule 8.21 of the High Court Rules provides:

Order for particular discovery against non-party after proceeding

commenced

(1) This rule applies if it appears to a Judge that a person who is not a
party to a proceeding may be or may have been in the control of 1 or more
documents or a group of documents that the person would have had to
discover if the person were a party to the proceeding.

(2) The Judge may, on application, order the person –

(a) to file an affidavit stating –

(i) whether the documents are or have been in the

person’s control; and

(ii) if the documents have been but are no longer in the

person’s control, the person’s best knowledge and
belief as to when the documents ceased to be in the
person’s control and who now has control of them;
and

(b) to serve the affidavit on a party or parties specified in the

order; and

(c) if the documents are in the control of the person, to make

those documents available for inspection, in accordance with
rule 8.27, to the party or parties specified in the order.

(3) An application for an order under subclause (2) must be made on

notice to the person and to every other party who has filed an address for
service.

[67] The power to make an order for non-party discovery is discretionary, with the
jurisdiction exercised where there are grounds for belief that a non-party had or has
documents that would be discoverable if the person was a party. The key principles
of relevance and proportionality apply. A non-party discovery order must be
necessary, in the sense that other sources of evidence are unlikely to be sufficient
because they are materially incomplete or unreliable. 29

[68] Ms O’Brien seeks non-party discovery orders against the following non-parties
– each of whom has been served with the application:

29
Vector Gas Contracts Ltd v Contact Energy Ltd [2014] NZHC 3171, [2015] 2 NZLR 670.
 (a) ASB Bank Ltd;

(b) ANZ New Zealand Ltd;

(c) Westpac New Zealand Ltd;

(d) Des Chia & Associates Ltd (accountant);

(e) Gravity Ltd; and

(f) Precision Manufacturing Solutions Ltd and Triode Group Ltd (which
are essentially one and the same business).

[69] The non-party banks have advised will abide the Court’s decision.

[70] Mr Parkinson and the Trustees also abide the Court’s decision but contend that
to the extent that any non-party discovery is ordered, it must be produced in
accordance with the High Court Rules and, in particular, r 8.21. They say that the
documents to be discovered should relate strictly to the allegations pleaded against the
defendants and must be necessary.

[71] In addressing each of these applications, my findings above in relation to the

particular discovery (r 8.19) are relevant. There has been a breach by Mr Parkinson
of his discovery obligations and his evidence and that of Ms Kedrinskaia is unreliable.
That is an important context for assessing whether the non-party discovery orders are
necessary in the sense that other sources of evidence (namely Mr Parkinson and
Ms Kedrinskaia themselves) are unlikely to be sufficient because they are materially
incomplete or unreliable. There is also a clear need for a robust approach and to bring
all outstanding discovery issues to a conclusion.

[72] Many of the non-parties are of course trading banks and the documents sought
include bank statements. They are clearly relevant to the issue of tracing and whether
Mr Parkinson has a beneficial interest in Heuchan Lane; they may well be the primary
evidence that supports Ms O’Brien’s principal contention.

[73] Ms Morris submitted that any non-party discovery orders should not concern
the affairs of Mr Parkinson or the Trustees in any capacity other than that in which
they are sued. She argued that, for example, the Trustees are sued as Trustees of the
Anna Kedrinskaia, yet Ms O’Brien is seeking all personal bank accounts and credit
cards of Ms Kedrinskaia. However, that submission takes no account of the fact that
there is a credible basis on the evidence before me for Ms O’Brien to allege that a
number of the personal bank accounts of Anna Kedrinskaia (including the ASB Orbit
mortgage account), received profits/funds from GDL – and indeed, that there was
substantial intermingling of those funds amongst the various personal bank accounts
of Ms Kedrinskaia. The submission of Ms Morris that these materials have no
relevance to the allegations is rejected. Substantial funds from GDL appear to have
been paid into the personal ASB Orbit account in Ms Kedrinskaia’s sole name.

[74] I find that the grounds for all of the non-party discovery orders sought have
been made out. There are grounds for belief that all of the non-parties have documents
that would be discoverable if they were parties, and such orders are, in these
circumstances, necessary. The terms of the orders I make are set out below.

[75] I accept, as Ms Morris submitted in her memorandum of 20 April 2021, that

Westpac has advised that it does not hold any information relating to Ms Kedrinskaia
or the third defendant. That is confirmed in the email from Westpac dated 16 April
2021. The non-party discovery orders I make in relation to Westpac do not extend to
Anna Kedrinskaia, the Anna Kedrinskaia Family Trust or to Liston Trustee Services
Ltd.

Costs of the non-party discovery and whether formal affidavits of documents are
required from the non-parties

[76] In accordance with r 8.22 of the High Court Rules 2016, if it is manifestly
unjust for a party to have to meet the costs of complying with an order for non-party
discovery, the Court may order that another party meet those costs.

[77] In the circumstances here I find that it would be manifestly unjust for
Ms O’Brien, as the applicant, to meet the costs of the non-party discovery orders I am
making in this case. I find that Mr Parkinson should meet those costs. He has been in
breach of his discovery obligations to date and his failures have contributed in a
significant way to the need for Ms O’Brien to seek the non-party discovery orders.
The account given by Mr Parkinson as to steps taken to locate relevant documents are,
as I have recorded elsewhere in this judgment, unreliable. This includes the very late
disclosure of some Triode Group Ltd invoices which are of direct relevance to one of
the principal issues in dispute in the proceedings, namely manufacturing versus
consultancy (referred to at [7] above).

[78] I note that the Court of Appeal in Biggs v Biggs, 30 held, in making discovery
orders against Mr Biggs, that should he swear that the information in dispute was not
within his control and that a non-party discovery application might become relevant
and necessary, and that it would be appropriate for the High Court to consider whether
he should pay the costs of such discovery to give him an appropriate incentive to obtain
the material at less cost. The same incentive clearly applies in this case and provides
further support for the order that I make under r 8.22.

[79] Ms McCartney has been corresponding with the three non-party trading banks
and reached agreement with them that the documents they are to discover can be
provided on an informal basis without the need for the filing of a formal affidavit of
documents. However, Ms Morris contended that in accordance with r 8.21, I must
order that all the non-parties be required to provide disclosure and file an affidavit of
documents.

[80] I reject Ms Morris’ submission and find, as negotiated between Ms McCartney

and the three non-party trading banks, that the discovery order can be provided on an
informal basis. In reaching that conclusion I apply the governing “yardstick”, namely
r 1.2 (the objective of the High Court Rules). 31 Such a conclusion is also consistent
with the objectives of procedural law as expressed in Halsbury’s Laws of England: 32

What practitioners seek for their clients when they resort to the courts is to use
the machinery of justice to obtain a just result, and what their clients seek, in
addition to vindicating or protecting their rights, to avoid is unnecessary
expense, delay and excessive technicality in the process of obtaining that just
result.

[81] As Ms McCartney submitted, the rules in relation to discovery require co-

operation between the parties and it is not unusual for the parties to reach agreement
that informal procedure should be adopted with a view to reducing cost. I fail to see
why the Court should not sanction a similar approach in relation to non-party

30
Biggs v Biggs, above n 11, at [75].
31
See Schmidt v BNZ Ltd [1991] 2 NZLR 60 at 63.
32
Halsbury’s Laws of England (5th ed, 2020) vol 11 Civil Procedure at [3].
discovery, particularly where the non-party is co-operating, is legally represented and
there is no basis for doubting the non-party’s willingness to comply with its
obligations.

[82] Mr Parkinson contended that given the very serious allegations made against
him by Ms O’Brien (including concealing relationship property), that it was important
to have formal affidavits of documents from the non-parties, particularly those relating
to bank statements. However, I do not see that the procedure agreed between the non-
party trading banks and Ms McCartney might prejudice Mr Parkinson where the banks
are all legally represented. If Mr Parkinson is genuinely concerned about this issue, it
remains open to him to meet the reasonable costs of the non-party trading banks filing
formal affidavits of documents. He and Ms Kedrinskaia do of course have a formal
relationship with the banks involved, given that they are clients of them.

[83] In relation to the other non-parties, namely Des Chia & Associates Ltd, Gravity
Ltd and Triode Group Ltd, I find that all three should file and serve affidavits of
documents. Mr Parkinson has a direct relationship with all three parties (he is a client
of Des Chia & Associates Ltd (the accountants) and co-operation from him may well
assist in reducing their costs.

Case management directions

[84] The parties agree that there needs to be further case management directions to
ensure that the trial scheduled for February 2022 remains on track.

[85] In accordance with the memoranda of the parties (12 May 2021 and 18 May
2021) I make, by consent, the directions set out below for the filing of amended
pleadings and interlocutory applications.

[86] At the hearing, there was some with discussion with and between counsel as to
whether an order for consolidation should be made. Consolidation does not seem to
have been pursued by either party in the subsequently memoranda. Leave is reserved
to make application for consolidation should that be relevant.

Costs

[87] Ms O’Brien has succeeded with all four of her applications the subject of this
judgment. She has also succeeded in having Mr Parkinson’s cross-strike out
application dismissed. Having succeeded on all applications, in my view she is
entitled to costs.

[88] Ms O’Brien seeks costs on an increased or indemnity basis. As Ms McCartney

accepted at the hearing, the question of the quantum of any costs will need to be
addressed by way of further submissions (with appropriate supporting
documentation).

[89] I reject the submission of Mr Parkinson and the trustees that costs should be
reserved and determined at trial. I find that there is a proper basis for an award of
costs at this stage, having regard to my findings in my judgment that Mr Parkinson
and Ms Kedrinskaia are and have thus far been in breach of their discovery obligations.

[90] Relevant timetable directions for the filing of submissions on costs are set out
below.

Result

[91] I make the following orders and directions:

(a) The application by Ms O’Brien for the joinder of Ms Anna Kedrinskaia

and Liston Trustee Services Ltd to the relationship property
proceedings (CIV-2020-404-2351) is granted;

(b) The application by Ms O’Brien in the relationship property proceeding

(CIV-2020-404-2351) to strike out Mr Parkinson’s claims and defence,
is dismissed. The question of costs for non-compliance with discovery
orders made in the relationship property proceeding is to be determined
in accordance with the timetable set out below;

(c) The application by Mr Parkinson in the relationship property

proceeding (CIV-2020-404-2351) to strike out Ms O’Brien’s
application to strike out, is dismissed;

(d) Ms O’Brien’s application pursuant to r 8.19 for particular discovery

from the first to third defendants in the Companies Act proceeding
(CIV-2019-404-2814) is granted on the terms set out at Schedules A, B
and C at [55] above;
(e) Ms O’Brien’s application for non-party discovery pursuant to r 8.21 in
the Companies Act proceeding (CIV-2019-404-2814) is granted on the
terms set out below;

(f) Mr Parkinson, in both his personal and trustee capacity, and Ms Anna
Kedrinskaia, in both her personal and trustee capacity, are to file
consolidated and updated affidavits of documents in both proceedings,
which are to include discovery from any previous discovery and to
provide discovery in terms of the orders I have made at Schedules A, B
and C above. Mr Parkinson’s affidavit is to adequately identify
documents for which privilege is claimed. The affidavits are to be filed
and served by 25 June 2021;

(g) The ANZ Bank NZ Ltd is to provide non-party discovery, pursuant to

r 8.19, on the terms set out in the amended Schedule E attached to the
memorandum of counsel for ANZ Bank NZ Ltd, dated 21 April 2021.
The reasonable costs of the ANZ Bank NZ Ltd are to be met by
Mr Kevin Parkinson in accordance with r 8.22, and the discovery is to
be provided by 30 June 2021;

(h) Westpac NZ Ltd is to provide non-party discovery on the terms set out
in Schedule F of the memorandum of counsel for Westpac NZ Ltd,
dated 20 April 2021. The reasonable cost of Westpac NZ Ltd are to be
met by Mr Kevin Parkinson in accordance with r 8.22, and the
discovery is to be provided by 30 June 2021;

(i) The ASB Bank Ltd is to provide non-party discovery pursuant to r 8.21
in accordance with the memorandum and amended Schedule D of the
memorandum of counsel for the ASB Bank, dated 19 April 2021. The
reasonable costs of the ASB Bank are to be met by Mr Kevin Parkinson
in accordance with r 8.22, and the discovery is to be provided by
30 June 2021;

(j) Des Chia & Associates Ltd is to provide particular discovery as a non-
party pursuant to r 8.21 and to file and serve an affidavit of documents
by 30 June 2021, stating:
 (i) Whether the documents set out in Schedule D attached to
Ms O’Brien’s application for non-party discovery dated
12 February 2021, are or have been in its control; and

(ii) If the documents have been but are no longer in its control, its
best knowledge and belief as to when the documents ceased to
be in its control and who now has control of them;

(iii) If the documents are in its control, to make those documents

available for inspection, by electronic transmission of the
documents to all the parties in the proceedings;

(iv) The reasonable cost of Des Chia & Associates Ltd are to be met
by Mr Kevin Parkinson in accordance with r 8.22;

(k) Gravity Ltd is to provide non-party discovery pursuant to r 8.21 by

filing and serving an affidavit of documents by 30 June 2021, stating:

(i) Whether the documents set out at Schedule H to the application

for non-party discovery dated 12 February 2021, are or have
been in its control; and

(ii) If the documents have been but are no longer in its control, its
best knowledge and belief as to when the documents ceased to
be in its control and who now has control of them;

(iii) If the documents are in its control, to make those documents

available for inspection by electronically emailing them to all
parties.

The reasonable costs of Gravity Ltd are to be met by Mr Kevin

Parkinson in accordance with r 8.2.
 (l) Triode Group Ltd, 33 is to provide non-party discovery pursuant to r 8.21
and to file and serve an affidavit of documents by 30 June 2021,
stating:

(i) Whether the documents set out in Schedule J to the application

for non-party discovery dated 12 February 2021, are or have
been in its control;

(ii) If the documents have been but are no longer in its control, its
best knowledge and belief as to when the documents ceased to
be in its control and who now has control of them; and

(iii) If the documents are in its control, to make those documents

available for inspection by electronically transmitting them to
all of the parties.

The reasonable costs of Triode Group Ltd are to be met by Mr Kevin

Parkinson in accordance with r 8.22.

(m) Mr Parkinson is to file and serve in the relationship property proceeding

(CIV-2020-404-2351) by 18 June 2021 a formal statement of claim;

(n) Ms O’Brien is to file and serve a statement of defence and

counterclaim/cross claim in the relationship property proceeding (CIV-
2019-404-2814) by 2 July 2021;

(o) Mr Parkinson is to file and serve a statement of defence to any

counterclaim in the relationship property proceeding (CIV-2019-404-
2814) by 9 July 2021;

(p) Any further interlocutory applications in the relationship property

proceeding (CIV-2020-404-2814) are to be filed and served by 16 July
2021;

33
Ms McCartney advises that Precision Manufacturing Solutions Ltd and Triode Group Ltd are one
and the same business and that Precision Manufacturing Solutions Ltd has been wound up. In the
circumstances, I apprehend there is no need to make any orders in relation to Precision
Manufacturing Solutions Ltd.
 (q) If any further interlocutory applications are filed, then:

(i) Within 15 working days of service of the application, a notice

of opposition and evidence in opposition are to be filed;

(ii) Within 10 working days of service of the notice of opposition,

any reply is to be filed;

(iii) The applicant is to file and serve any submissions 10 working

days before the hearing;

(iv) The respondent is to file and serve written submissions five

working days before the hearing.

[92] Ms O’Brien is to file written submissions addressing the issue of costs on the
interlocutory applications, the subject of this judgment, by 18 June 2021.

[93] Mr Parkinson, Ms Kedrinskaia and the trustees, are to file submissions in

response by 2 July 2021.

[94] The Court will then determine the question of costs on the papers, subject to
any application for the parties to be heard on the question of costs.

[95] I further order that unless Mr Kevin Parkinson complies with the orders and
directions made in this judgment, including the order that he meet the reasonable costs
of the non-parties in relation to their discovery, and files and serves a consolidated
affidavit of documents, then his PRA proceedings (he is the applicant) will be struck
out and he will be debarred from defending the Companies Act proceedings pursuant
to r 7.48(2) of the High Court Rules.

[96] Leave is reserved to apply for further directions.

__________________________

Associate Judge P J Andrew

 SCHEDULE OF PROCEDURAL CHRONOLOGY

Date Detail
10 Mr Parkinson applies for orders under the Property (Relationships) Act 1976
November (PRA) to determine and divide the relationship property on a 50/50 basis.
2017
14 February Ms O’Brien files a notice of defence and made cross applications for orders
2018 pursuant to ss 15, 18B, 33 and 44 of the PRA.
14 May Ms O’Brien files an interlocutory application for an order for discovery
2018 against Mr Parkinson, interrogatories from Mr Parkinson, the joinder of
General Dynamics Limited (GDL) and Kea GNSS Limited (Kea) and for an
interim distribution of $240,000.
14 May Mr Parkinson files an interlocutory application for discovery orders against
2018 Ms O’Brien
18 May Mr Parkinson files an interlocutory application for interim distribution of
2018 $240,000.
28 May Mr Parkinson consents to Ms O’Brien’s application for interim distribution
2018 of $240,000.
28 May The parties file a joint memorandum of counsel seeking discovery orders by
2018 consent.
30 May Judge Partridge makes discovery orders by consent.
2018
20 June Ms O’Brien files a notice of opposition to Mr Parkinson’s interim
2018 distribution application.
22 June Mr Parkinson files a notice of opposition in respect of the application for
2018 joinder of GDL and Kea.
28 June Affidavit of documents by Mr Parkinson filed and served in the Family
2018 Court.
18 GDL, Kea, Mr Parkinson in his capacity as trustee of the Kevin Parkinson
September Family Trust (KPF Trust) and Ms O’Brien in her capacity as trustee of the
2018 Louisa Parkinson Family Trust are joined as parties to the proceeding.
10 October Ms O’Brien files an amended cross-application for orders under the PRA.
2018
5 February Mr Parkinson files a notice of defence to Ms O’Brien’s amended cross-
2019 application dated 10 October 2018.
23 March Ms O’Brien files a second amended cross-application for orders under the
2019 PRA. Delays between November 2017 and March 2020 can at least be part
attributed to Ms O’Brien refining her claim.
15 May Ms O’Brien files without notice for Mr Parkinson to attend an examination
2019 regarding matters required to be disclosed in his affidavit of assets and
liabilities dated 20 October 2017.
9 October Mr Parkinson attends examination in the Family Court.
2019
19 Ms O’Brien, on behalf of General Dynamics Corporation Limited (GDC),
December filed a shareholder derivative action in the High Court (company
2019 proceeding).
17 January Morris Legal files a notice of change of representation for Mr Parkinson.
2020
18 February Memorandum of counsel for Mr Parkinson and the trustees filed in the
2020 Family Court responding to discovery and annexing certain documents to
the memorandum.
27 February A 2-hour hearing is set down for 15 May 2020 in the Family Court for
2020 transfer application, joinder and costs.
3 March Morris Legal writes to Jan McCartney QC on 3 March 2020 seeking
2020 clarification of the joinder application.
5 March Mr Parkinson files a notice of opposition to Ms O’Brien’s application to
2020 transfer.
20 March The defendants in the company proceeding file a notice of opposition.
2020
23 March Ms O’Brien files an application for:
2020 • joinder of Anna Kedrinskaia in her personal capacity and in her
capacity as a trustee for the Anna Kedrinskaia Family Trust (AKF
Trust); and
• strike out of Mr Parkinson’s claims and debarring him from
defending.
23 March Ms O’Brien made a second amended cross-application for orders under the
2020 PRA.
6 April 2020 Mr Parkinson files a notice of opposition to the joinder application.
6 April 2020 Mr Parkinson files a notice of opposition to the strike out application and
debar defence application and made a cross claim for strike out and costs.
24 April Mr Parkinson files a notice of defence to Ms O’Brien’s second amended
2020 cross-application dated 23 March 2020.
12 May The parties file a joint memorandum of counsel seeking adjournment of the
2020 short cause hearing in the Family Court set down for 15 May 2020.
21 May A hearing is held for the company proceeding before Associate Judge
2020 Andrew.
25 June The parties file a joint memorandum of counsel seeking adjournment of the
2020 short cause hearing set down for 9 July 2020.
14 July 2020 Associate Judge Andrew grants the plaintiffs in the company proceeding
leave to bring a shareholder derivative action on behalf of GDC.
20 July 2020 A short cause hearing is set down on 10 September 2020 to determine the
parties’ interlocutory applications (first hearing).
22 July 2020 The plaintiffs file a statement of claim.
28 July 2020 Order for discovery made by Associate Judge Andrew in High Court
shareholder derivative proceeding.
10 August The defendants file a notice of appeal in the Court of Appeal.
2020
10 August Associate Judge Andrew makes standard discovery order.
2020
20 August The plaintiffs file a notice of appearance in the Court of Appeal.
2020
3 September The defendants file an interlocutory application for security for costs.
2020
9 September The Family Court emails counsel and cancels the first hearing as there was
2020 no available Judge.
9 September Affidavits of documents filed and served by Mr Parkinson in Companies
2020 Act proceeding.
25 The defendants file a statement of defence.
September
2020
1 October The plaintiffs file a notice of opposition to the defendants’ interlocutory
2020 application for security for costs.
16 October Affidavit of Mr Parkinson in relation to security for costs application filed
2020 and served. Exhibits documents not formally discovered.
28 October Affidavit of documents of Mr Parkinson filed and served in Companies Act
2020 proceeding.
28 October Affidavit of documents of Anna Kedrinskaia filed and served in shareholder
2020 derivative proceeding. The trustees’ resolution of 29 April 2014 disclosed
for the first time.
2 November Ms O’Brien files a third amended cross-application.
2020
3 November The parties file a joint memorandum of counsel seeking directions for the
2020 proceeding to be transferred to the High Court by consent.
3 November Judge Muir makes the directions sought by consent and the proceeding is
2020 transferred to the High Court.
12 A hearing is held before Associate Judge Andrew to determine the
November defendants’ interlocutory application for security for costs.
2020
30 Email from Mr Z Kennedy, barrister, to J McCartney QC, attaching
November documents not previously discovered.
2020
18 Associate Judge Andrew orders Ms O’Brien and GDCL to provide an
December undertaking to the High Court regarding security for costs. Application by
2020 Mr Parkinson that Ms O’Brien pay $150,000 by way of security rejected.
21 The High Court sets down an interlocutory one-day hearing on 21 April
December 2021 to hear all outstanding interlocutory applications from the Family
2020 Court.
3 February The plaintiffs file an interlocutory application to adduce further evidence in
2021 the Court of Appeal.
12 February The plaintiffs file an application for further and better discovery from the
2021 defendants and discovery from non-parties.
18 February The defendants file a notice of opposition to the plaintiffs’ interlocutory
2021 application to adduce further evidence in the Court of Appeal.
24 February The parties attend appeal hearing in the Court of Appeal.
2021
5 March The defendants file a notice of opposition to the plaintiffs’ discovery
2021 application.
14 April Further affidavit of documents from Anna Kedrinskaia filed and served.
2021
14 April Further affidavit of documents from Mr Parkinson filed and served.
2021