100 Investments Limited v Walker - [2023] NZHC 3740

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1160

[2023] NZHC 3740

BETWEEN
100 INVESTMENTS LTD

First Plaintiff

Continued…

AND

ROBERT BRUCE WALKER

First Defendant

Continued…

Hearing: 12 and 13 December 2023

Appearances:

A R Barker KC and R B Hucker for the first to fourth plaintiffs in 1160 and the first to fourth defendants in 0274

D J Cooper KC for the first defendant in 1160 and the fifth defendant in 0274

D R Bigio KC and N R Frith for the third defendant in 1160 and the seventh defendant in 0274
W D Hofer and R J Reeves for the fourth defendant in 1160 and the eighth defendant in 0274
J Moss for the fifth to seventeenth defendants in 1160 and the first to thirteenth plaintiffs in 0274

Judgment:

18 December 2023

JUDGMENT OF CAMPBELL J

(Applications for discovery, directions, and admissibility challenges)

This judgment was delivered by me on 18 December 2023 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

100 INVESTMENTS LTD v WALKER [2023] NZHC 3740 [18 December 2023]

CIV 2019-404-1160

FTG SECURITIES LTD

Second Plaintiff

RFD FINANCE LTD
Third Plaintiff

TOMANOVICH HOLDINGS LTD
Fourth Plaintiff

AND

JOHN MARSHALL SCUTTER

Second Defendant

LPF GROUP LTD
Third Defendant

SPF NO 10 LTD (In Liquidation) Fourth Defendant

KEVIN JOHN WHITLEY as Liquidator of Property Ventures Ltd (In Liquidation)

Fifth Defendant

PROPERTY VENTURES LTD (In
Liquidation)
Sixth Defendant

CASHEL VENTURES LTD (In

Receivership and Liquidation) Seventh Defendant

TAY VENTURES LTD (In Receivership and Liquidation)

Eighth Defendant

LIVINGSPACE PROPERTIES LTD

(In Liquidation) Ninth Defendant

TUAM VENTURES LTD (In Liquidation) Tenth Defendant

CASTLE STREET VENTURES LTD (In
Liquidation)

Eleventh Defendant

Continued…

LICHFIELD VENTURES LTD (In
Liquidation)
Twelfth Defendant

ST ASAPH VENTURES LTD (In
Liquidation)
Thirteenth Defendant

BEECHNEST LTD (In Receivership and Liquidation)
Fourteenth Defendant

92 LICHFIELD LTD (In Receivership and Liquidation)
Fifteenth Defendant

MONTECRISTO CONSTRUCTION
COMPANY LTD (In Liquidation) Sixteenth Defendant

FIVE MILE HOLDINGS LTD (In
Liquidation) Seventeenth Defendant

CIV 2022-404-274

BETWEEN
KEVIN JOHN WHITLEY

First Plaintiff

PROPERTY VENTURES LTD (In

Liquidation) Second Plaintiff

FIVE MILE HOLDINGS LTD (In

Liquidation) Third Plaintiff

CASHEL VENTURES LTD (In Liquidation and Receivership)

Fourth Plaintiff

TAY VENTURES LTD (In Liquidation and Receivership)

Fifth Plaintiff

LIVINGSPACE PROPERTIES LTD

(In Liquidation) Sixth Plaintiff

Continued….

AND
BEECHNEST VENTURES LTD (In

Liquidation) Seventh Plaintiff

CASTLE STREET VENTURES LTD (In
Liquidation)
Eighth Plaintiff

LICHFIELD VENTURES LTD (In

Liquidation) Ninth Plaintiff

92 LICHFIELD LTD (In Liquidation) Tenth Plaintiff

ST ASAPH VENTURES LIMITED (In
Liquidation)
Eleventh Plaintiff

MONTECRISTO CONSTRUCTION

COMPANY LTD (In Liquidation) Twelfth Plaintiff

TUAM VENTURES LTD (In Liquidation) Thirteenth Plaintiff

100 INVESTMENTS LTD
First Defendant

FTG SECURITIES LTD
Second Defendant

RFD FINANCE LTD
Third Defendant

TOMANOVICH HOLDINGS LTD

Fourth Defendant

ROBERT BRUCE WALKER
Fifth Defendant

JOHN MARSHALL SCUTTER
Sixth Defendant

LPF GROUP LTD
Seventh Defendant

SPF NO 10 LTD (In Liquidation) Eighth Defendant

Introduction

[1] These two consolidated proceedings have been on foot for some time. One was commenced in 2019, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 3740
Decision Date: 18 December 2023

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, recently heard ten interlocutory matters in the consolidated proceedings of 100 Investments Ltd v Walker, involving multiple plaintiffs and defendants, including liquidators and receivers of various companies. The issues addressed included applications for further discovery, directions, admissibility challenges, security for costs, and an application for leave to appeal a previous security for costs decision. The judgment delivered by Campbell J on 18 December 2023, focused on the applications for security for costs and the appeal leave.

The court considered LPF's second application for security for costs from the plaintiffs in the liquidator’s proceeding and whether leave was required to make this second application. Campbell J held that LPF’s earlier failure on a similar application meant that special circumstances were required to bring a second application, which LPF did not establish. The court also dismissed SPF’s application for security for costs, finding insufficient evidence to infer that the liquidator would be unable to pay costs if unsuccessful. Additionally, LPF’s application for leave to appeal the earlier security for costs decision was declined as the proposed appeal did not meet the criteria for leave under the Senior Courts Act 2016.

The judgment provided detailed reasoning for each decision, referencing relevant rules, authorities, and previous judgments. It also addressed the costs associated with these applications, determining the entitlement of parties to costs based on the success or failure of their respective applications. The court's decision underscored the importance of providing sufficient evidence to support claims regarding a party's ability to pay costs and the stringent criteria for granting leave to appeal.

Orders