100 Investments Ltd v Walker - [2023] NZHC 2227

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1160

[2023] NZHC 2227

BETWEEN
100 INVESTMENTS LTD

First Plaintiff

Continued…

AND

ROBERT BRUCE WALKER

First Defendant

Continued…

Hearing:
Further submissions:

17 and 18 July 2023

21 and 25 July 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:

17 August 2023

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 17 August 2023 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

100 INVESTMENTS LTD AND OTHERS v WALKER AND OTHERS [2023] NZHC 2227 [17 August 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] This judgment determines three interlocutory applications made in these two consolidated proceedings. Mr Whitley (a defendant in one proceeding and a plaintiff in the other) applies for an order restraining Minter Ellison Rudd Watts (Minters) from…

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 2227
Decision Date: 17 August 2023

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard three interlocutory applications in consolidated proceedings brought by 100 Investments Ltd and others against Robert Bruce Walker and others. The applications related to the restraint of Minter Ellison Rudd Watts (Minters) from acting for LPF Group Ltd and SPF No 10 Ltd, and the strike-out of claims brought against LPF and SPF by the plaintiffs in the consolidated proceedings. The first plaintiff, 100 Investments Ltd, and others (the secured creditors) alleged that Mr Walker, Mr Scutter, LPF and SPF were required to repay some of the settlement proceeds received from previous litigation. The second set of plaintiffs, Mr Whitley, PVL and the PVL subsidiaries (the Whitley parties), alleged that any money repaid should be paid to Mr Whitley as liquidator of PVL and the PVL subsidiaries. The court declined the application to restrain Minters from acting for LPF and SPF. It found that there was no reasonable likelihood that Minters would be defending their advice if they were to represent LPF or SPF, nor that Minters lawyers would be required to give contentious evidence. The court also declined most of the strike-out applications by LPF and SPF. It directed the Whitley parties to amend their claim to address some defects and to provide particulars. LPF was entitled to costs on the application to restrain Minters, while the Whitley parties were entitled to costs on the strike-out applications, subject to a modest reduction.

Orders