100 Investments Ltd v Walker - [2023] NZHC 3732

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1160

[2023] NZHC 3732

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:

15 December 2023

JUDGMENT OF CAMPBELL J

(Applications for discovery, directions, and admissibility challenges)

This judgment was delivered by me on 15 December 2023 at 4.15 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

100 INVESTMENTS LTD v WALKER [2023] NZHC 3732 [15 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 3732
Decision Date: 15 December 2023

CaseChat Overview and Summary

This case involves two consolidated proceedings before the High Court of New Zealand. The proceedings, CIV 2019-404-1160 and CIV 2022-404-274, involve multiple parties, including liquidators, former directors, and various companies in liquidation. The consolidated proceedings centre around allegations of breaches of fiduciary and statutory duties, knowing receipt, and other claims related to the settlement proceeds from earlier litigation involving the companies. The court addressed several interlocutory matters, including applications for further discovery, directions regarding discovery, and challenges to the admissibility of evidence.

The primary issues involved the scope of discovery obligations, particularly concerning documents held by former liquidators, solicitors, and other parties. The court ruled that certain documents sought by LPF and SPF were not within the control of the Whitley parties, and thus their applications for further discovery were declined. In contrast, the court granted the discovery orders sought by Mr Cooper, Mr Walker's litigation guardian, for specific categories of documents relevant to the defences and counterclaims in the proceedings.

Regarding the directions application, the court found that Mr Cooper, as litigation guardian, was not required to undertake a comprehensive review of the documents within Mr Walker's control, given the impracticality and unfairness of such a task.

The court also addressed challenges to the admissibility of briefs of evidence submitted by various experts and witnesses. Some parts of these briefs were deemed inadmissible, either for containing inadmissible opinion, submission, or other violations of the rules of evidence and the Code of Conduct for Expert Witnesses. Specific passages in the briefs of Mr Henderson, Mr Whale, Mr Downey, and Mr Whitley were identified as inadmissible and required removal.

In summary, the court declined some discovery applications, granted others, provided directions on the obligations of a litigation guardian, and ruled on the admissibility of expert and witness evidence. The final orders included specific directions on the removal of inadmissible passages from the briefs of various witnesses and experts.

Orders