100 Investments Ltd v Walker - [2023] NZHC 2584

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1160

[2023] NZHC 2584

BETWEEN
100 INVESTMENTS LTD

First Plaintiff

Continued…

AND

ROBERT BRUCE WALKER

First Defendant

Continued…

Hearing:
Further Submissions:

17 and 18 July 2023

30 August 2023 and 6, 8 and 12 September 2023

Appearances:

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

D Bigio KC and N R Frith for the third defendant in 1160 and the seventh defendant in 0274
W Hofer and R 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 September 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 15 September 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 2584 [15 September 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] In a judgment dated 17 August 2023,1 I declined the application by LPF Group Ltd (LPF), the seventh defendant in the second of these two consolidated proceedings, to strike out the entirety of the plaintiffs’…

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.

Keep reading for free

Create a free CaseChat account to read 100 Investments Ltd v Walker and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2023] NZHC 2584
Decision Date: 15 September 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the consolidated proceedings between 100 Investments Ltd and others as plaintiffs against Robert Bruce Walker and others as defendants involved a decision regarding an application by LPF Group Ltd for security for costs under Rule 5.45 of the High Court Rules 2016. LPF argued that there was reason to believe the plaintiffs would be unable to pay its costs if they were unsuccessful. The court identified two primary questions: whether LPF had satisfied the threshold test that the plaintiffs would be unable to pay costs if unsuccessful, and whether it was just in all the circumstances to order security for costs. Additionally, the court considered whether security should be ordered against some plaintiffs but not others, given that the plaintiffs were suing jointly with a common interest.

The court found that LPF had met the threshold test for the PVL companies, which were in liquidation and likely unable to pay costs if unsuccessful. However, LPF had not met the threshold test for Mr Whitley, as there was no evidence to suggest he would be unable to pay even the highest estimated costs. The court also determined that if costs were likely to be awarded on a joint and several basis, security should not be ordered. Given that all plaintiffs sued together against LPF, the court concluded that it was likely that costs would be awarded on a joint and several basis, and therefore no security should be ordered from any of the plaintiffs.

The court declined LPF's application for security for costs and ordered that the plaintiffs were entitled to costs on the application, with a process set for determining the quantum if counsel could not agree.

Orders