100 Investments Ltd v Walker - [2024] NZHC 93

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1160

[2024] NZHC 93

BETWEEN
100 INVESTMENTS LTD

First Plaintiff

Continued…

AND

ROBERT BRUCE WALKER

First Defendant

Continued…

Hearing: 5 February 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 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:

7 February 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 7 February 2024 at 11.00 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 93 [7 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

Introduction

[1] These two consolidated proceedings have been on foot for some time. One was commenced in 2019, the other in 2022. A four-week trial is scheduled to commence on 26 February 2024.

[2] On 12 and 13 December 2023, I heard ten interlocutory matters,…

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 93
Decision Date: 7 February 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the case of 100 Investments Ltd and Others v Walker and Others was heard on 5 February 2024. The consolidated proceedings, originating in 2019 and 2022, involve multiple parties, including liquidators, receivers, and various companies in liquidation or receivership. The primary dispute centres on the discovery of documents held by former liquidators and a firm of solicitors, which are believed to contain relevant material for the upcoming four-week trial scheduled for 26 February 2024.

The legal issues before the court involved two primary applications: an application by LPF for leave to appeal the judge's earlier decision on a discovery application and an application by LPF for an adjournment of the trial. LPF argued that the delay caused by the proposed appeal would be justified due to the importance of the documents in question for a fair trial. The judge, Campbell J, assessed these applications under the criteria set out in relevant legal precedents, focusing on the potential for serious argument, the importance of the interest at stake, and the prospects of success of the proposed appeal.

The judge found that while the proposed appeal raised questions capable of serious argument, the delay and costs associated with an appeal outweighed the potential benefits. Additionally, the judge concluded that LPF had not acted reasonably or done everything practicable to avoid the need for an adjournment. The importance of the documents, while acknowledged, was not deemed sufficient to justify the significant delay and prejudice to other parties. The judge also noted inconsistencies in LPF's earlier positions regarding the discovery of these documents, which further undermined the application for an adjournment.

Ultimately, the judge declined both the application for leave to appeal and the application for an adjournment. The secured creditors and the Whitley parties were awarded costs. Further directions regarding the trial preparations and any necessary extensions for serving briefs were to be addressed at a pre-trial conference scheduled for 13 February 2024.

Orders