100 Investments Ltd v Walker - [2024] NZHC 468

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1160

[2024] NZHC 468

BETWEEN
100 INVESTMENTS LTD

First Plaintiff

Continued…

AND

ROBERT BRUCE WALKER

First Defendant

Continued…

Hearing: 1 March 2024

Appearances:

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

D Salmon KC, N R Frith and H Jaques for the second defendant in 1160 and the sixth defendant in 0274

J MacGillivray and R Reeves for the third defendant in 1160 and the seventh defendant in 0274

D J Cooper KC for Mr Walker

J Moss and C Hanafin for the fifth to seventeenth defendants in 1160 and the first to thirteenth plaintiffs in 0274

Judgment:

6 March 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 6 March 2024 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

100 INVESTMENTS LTD v WALKER [2024] NZHC 468 [6 March 2024]

CIV 2019-404-1160

FTG SECURITIES LTD

Second Plaintiff

RFD FINANCE LTD
Third Plaintiff

TOMANOVICH HOLDINGS LTD
Fourth Plaintiff

AND

LPF GROUP LTD

Second Defendant

SPF NO 10 LTD (In Liquidation) Third Defendant

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

PROPERTY VENTURES LTD (In

Liquidation)

Fifth Defendant

CASHEL VENTURES LTD (In

Receivership and Liquidation) Sixth Defendant

TAY VENTURES LTD (In Receivership and Liquidation)

Seventh Defendant

LIVINGSPACE PROPERTIES LTD

(In Liquidation) Eighth Defendant

TUAM VENTURES LTD (In Liquidation) Ninth Defendant

CASTLE STREET VENTURES LTD (In

Liquidation) Tenth Defendant

LICHFIELD VENTURES LTD (In

Liquidation)

Eleventh Defendant

Continued…

ST ASAPH VENTURES LTD (In
Liquidation)
Twelfth Defendant

BEECHNEST LTD (In Receivership and Liquidation)
Thirteenth Defendant

92 LICHFIELD LTD (In Receivership and Liquidation)
Fourteenth Defendant

MONTECRISTO CONSTRUCTION
COMPANY LTD (In Liquidation) Fifteenth Defendant

FIVE MILE HOLDINGS LTD (In
Liquidation)
Sixteenth 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

BEECHNEST VENTURES LTD (In

Liquidation) Seventh Plaintiff

Continued…

AND
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

LPF GROUP LTD
Sixth Defendant

SPF NO 10 LTD (In Liquidation) Seventh Defendant

[1] On the second day of this trial I heard five applications. I delivered oral decisions on four of the applications, with reasons to follow. I reserved judgment on the remaining application. This is my decision on that application, together with reasons for my decisions on 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: [2024] NZHC 468
Decision Date: 6 March 2024

CaseChat Overview and Summary

The case of 100 Investments Ltd v Walker involved several legal issues pertaining to claims of litigation privilege and the admissibility of certain documents in a complex litigation scenario. The primary parties included 100 Investments Ltd, various other plaintiffs, and Robert Bruce Walker as the key defendant, along with several other defendants representing various companies in liquidation or receivership. The legal issues centered around the validity of claims of litigation privilege over certain documents, the collateral waiver of privilege, and procedural matters such as the admissibility of expert evidence. The court had to determine whether the secured creditor plaintiffs could claim litigation privilege over certain documents and whether the liquidator's examination of a participant was confidential enough to attract litigation privilege. Additionally, the court addressed the principle of collateral waiver and its application to the documents held by third parties.

The reasoning of the court involved a rigorous application of the dominant purpose test for litigation privilege, as outlined in the Evidence Act 2006. The court found that some of the documents claimed to be privileged were not made for the dominant purpose of preparing for the proceeding, thus invalidating the claim to privilege. Regarding the liquidator's examination, the court held that the examination was not confidential as required for litigation privilege because the participant had not requested confidentiality, and the liquidator had not made it clear that the examination was intended to be private. The court also addressed the principle of collateral waiver, finding that the liquidator had waived privilege over a significant number of documents, thus collaterally waiving privilege over any remaining documents on certain issues. The court further declined to allow the plaintiffs to serve an expert's brief late in the proceedings, considering the potential prejudice to the defendants. Lastly, the court allowed certain amendments to the pleadings while rejecting others on the basis of insufficient particularisation.

The final outcome included specific orders regarding the inspection of documents to determine the validity of privilege claims, the rejection of claims to privilege for certain documents, a finding of collateral waiver of privilege over documents held by third parties on specified issues, the denial of leave to serve a late expert's brief, and conditional leave to amend certain pleadings.

Orders