Banks v Farmer - [2019] NZHC 53

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-0057

[2019] NZHC 53

BETWEEN
ADAM DAVID BANKS

Plaintiff

AND

WILLIAM ROBERT FARMER

First Defendant

SIMON MATHEW GAMBLE
Second Defendant

CHRISTOPHER JAMES MASSAM
Third Defendant

DOUGLAS LEROY FREDERICK

Fourth Defendant

Hearing: 3 August 2018

Appearances:

J W A Johnson and N G Lawrence for the Plaintiff and for the non-parties Caroline Banks and Leila Banks

R J Hollyman and A J Steel for the First Defendant T Homes for the Second to Fourth Defendants

Judgment:

1 February 2019

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 1 February 2019 at 4.30pm], pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Wynn Williams, Christchurch Lodder Law, Auckland
R J Hollyman, Auckland A J Steel, Auckland
Vallant Hooker, Auckland

BANKS v FARMER [2019] NZHC 53 [1 February 2019]

TABLE OF CONTENTS

The applications  [1]
The parties  [2]
The pleadings — what Mr Banks and Mr Farmer say  [5]
The defences of Mr Gamble, Mr Massam and Mr Frederick (collectively,
"the other defendants")  [31]
THE UNLESS APPLICATION  [40]
The discovery orders  [40]
The issues on the Unless application  [44]
Steps taken by Mr Gamble and Mr Massam to comply  [45]
Counsel's submissions  [56]
Discovery by Mr Gamble and Mr Massam  [56]
Discovery by Mr Frederick  [67]

Discussion and conclusions on the Unless application [77]

Applicable legal principles [77]
Application of the principles in this case [82] Summary of orders made on the unless application [104] APPLICATION BY MR FREDERICK FOR PARTICULAR DISCOVERY AGAINST MR BANKS [105]

What further documents is Mr Frederick asking for? [107]

Why does Mr Frederick want these documents?  [117]
Mr Banks' opposition  [122]
The evidence in support  [124]
The evidence in opposition  [148]
Discussion and conclusions on Mr Frederick's particular discovery
application  [153]
Applications for particular discovery — legal principles  [153]
Categories (i) and (ii) — the tax returns  [155] Categories (iii) and (iv) — correspondence between Mr Banks and his legal advisers, and between Mr Banks and his financial advisers  [182]
Category (v) — documents held by Immigration New Zealand relating to
applications by Mr Banks for a temporary visa and/or residence class visa     [193]
Categories (vi) and (vii) — bank statements, and bank documents relating to
Mr Banks having control of any bank account  [203]
Category (viii) documents — documents recording any investment or
contemplated investment in any company between 1 January 2004 and 31 September 2016  [227]
Category (ix) documents — correspondence with Mrs Banks concerning loans
to Mako  [234]
Category (x) documents — documents in which Mr Banks communicated with his accountant or solicitor, Mrs Banks, RBS, the ICICI Bank, Santander Bank,
the trustees of the trusts, and/or directors of the relevant companies               [241]

Summary of orders made on Mr Frederick's particular discovery

application [244]

APPLICATION BY MR FREDERICK FOR DISCOVERY AGAINST

NON-PARTIES  [245]
The application  [245]
Discovery sought from Mrs Banks  [246]

Discovery sought from the trustees…

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.

Continue reading Banks v Farmer

Details

AGLC: Banks v Farmer [2019] NZHC 53
Case: [2019] NZHC 53
Decision Date: 1 February 2019

CaseChat Overview and Summary

In the case of Banks v Farmer [2019] NZHC 53, the High Court of New Zealand addressed various applications related to the discovery process and security for costs. The primary dispute involved the plaintiff, Adam David Banks, an unsecured creditor of Mako Networks Holdings Ltd, which had gone into receivership and liquidation. Banks alleged that the defendants, including William Robert Farmer, Simon Mathew Gamble, Christopher James Massam, and Douglas Leroy Frederick, had failed to discharge their duties as directors under the Companies Act 1993 and the Securities Act 1978. The applications before the court included an "unless" application by Banks for orders directing the second, third, and fourth defendants to comply with discovery orders, an interlocutory application by Frederick for particular discovery, and applications by the defendants for security for their costs. The court dismissed Banks' "unless" application against Gamble and Massam but ordered them to provide verified lists of electronic documents within 25 working days. Regarding Frederick, the court ordered him to file a verified list of documents within 25 working days. The court also dismissed the security for costs applications by the defendants, considering factors such as the delay in filing the applications, the merits of the case, and the undertaking provided by one of the family trusts. The court varied the trial timetable to accommodate the orders made.

Orders