100 Investments Ltd v Walker - [2024] NZHC 144

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1160

[2024] NZHC 144

BETWEEN
100 INVESTMENTS LTD

First Plaintiff

Continued…

AND

ROBERT BRUCE WALKER

First Defendant

Continued…

On the papers

Counsel:

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 and N R Frith for the second defendant in 1160 and the sixth defendant in 0274

J MacGillivray and W Hofer for the third defendant in 1160 and the seventh defendant in 0274

D J Cooper KC as litigation guardian for Mr Walker

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

Judgment:

12 February 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 12 February 2024 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

100 INVESTMENTS LTD and OTHERS v WALKER and OTHERS [2024] NZHC 144 [12 February 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 9 February 2024, LPF Group Ltd (LPF) applied under s 56(3) of the Senior Courts Act 2016 for leave to appeal my decision, in a judgment of 7 February 2024,1 declining LPF’s application to adjourn the trial of these two consolidated proceedings…

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 144
Decision Date: 12 February 2024

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, was presented with an application for leave to appeal a decision declining an adjournment in the consolidated proceedings of 100 Investments Ltd and others versus Robert Bruce Walker and others. The application for leave to appeal was brought by LPF Group Ltd, one of the defendants in the consolidated proceedings. The primary legal issues revolved around whether the proposed appeal raised questions of law or fact capable of serious argument and whether it had a reasonable prospect of success. The court examined the grounds of the application, including the alleged errors in the previous decision, and whether the delay caused by the appeal was worth it given the interests of justice.

The court found that the proposed appeal did not meet the threshold for leave to appeal. The decision to grant or decline an adjournment involves a balancing exercise, and the court had already considered the key issues and resolved them against LPF. The court found that LPF had not shown that the alleged errors were significant enough to demonstrate that the exercise of discretion was plainly wrong. Additionally, the court noted that the appeal was against a discretionary decision, which carries a higher threshold for establishing error. The court concluded that LPF did not have reasonable prospects of success on appeal and declined the application for leave.

The court's decision was that LPF's application for leave to appeal the decision declining an adjournment was declined. The plaintiffs were entitled to costs from LPF on the application.

Orders