Beattie v Premier Events Group Ltd - [2012] NZCA 257

IN THE COURT OF APPEAL OF NEW ZEALAND

CA865/2011
[2012] NZCA 257

BETWEEN MALCOLM JAMES BEATTIE
First Appellant

AND ANTHONY JOSEPH REGAN
Second Appellant

AND CT NZ LIMITED
Third Appellant

AND PARNELL PARTNERS GROUP LIMITED
Fourth Appellant

AND SPORTS HOSPITALITY MANAGEMENT GROUP LIMITED
Fifth Appellant

AND PARNELL PARTNERS GROUP (NZ) LIMITED
Sixth Appellant

AND CARTAN GLOBAL LLP
Seventh Appellant

AND PREMIER EVENTS GROUP LIMITED
Respondent

Hearing: 24 May 2012

Court: Ellen France, Venning and Asher JJ

Counsel: J Eichelbaum for Appellants
M D Pascariu and M F Clark for Respondent

Judgment: 20 June 2012 at 11 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellants must pay the respondent costs on this appeal on a band A basis for a standard appeal together with usual disbursements. In addition, the appellants must pay the respondent costs for a standard application for leave plus usual disbursements.
CNo order as to costs on the respondent’s strike out application.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No
Introduction  [1]
Background  [5]
The High Court judgment  [16]
Issues on the appeal  [19]
Was r 4.56 relevant?  [21]
Should joinder have been refused due to PEG’s delay?  [27]
         Our assessment  [30]
Application of r 6.27  [37]
An “originating document”?  [39]
Was the correct test applied?  [42]
Result and costs  [43]

Introduction

Premier Events Group Limited (PEG), the respondent, was a specialist provider of travel and hospitality services for major sporting events such as the 2011 World Cup and the 2012 Olympics. The first and second appellants, Malcolm Beattie and Anthony Regan, were directors of PEG.
In May 2010, not long after Messrs Beattie and Regan left the company, PEG issued a proceeding against the two men and various corporate interests which they had established. The claims include an allegation that Messrs Beattie and Regan breached fiduciary duties owed by them as directors by negotiating directly with PEG’s clients, securing the termination of existing contractual arrangements between those clients and PEG, and establishing substitute contractual arrangements for their own benefit, or for the benefit of the companies in which they have an interest. PEG also alleges that Messrs Beattie and Regan negotiated with two American companies, Cartan Tours Inc (Cartan Tours) and Sportsmark Management Group Limited (Sportsmark), to ensure that a joint venture agreement which PEG was negotiating was not progressed further, and to put in place substitute contractual arrangements for the 2012 Olympic programme for their own benefit or for the benefit of their corporate entities.
Some time after the proceeding was filed, on 7 March 2011, PEG made an application seeking joinder of the two overseas companies, Cartan Tours and Sportsmark, to the proceeding. The application, which was opposed by the appellants, was dealt with by Wylie J.[1] Wylie J concluded that PEG was entitled to serve the proceeding on Cartan Tours and Sportsmark without leave as provided for under r 6.27(2)(h)(i) of the High Court Rules.[2]
[1] Wylie J has been case managing this and…

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: [2012] NZCA 257
Decision Date: 20 June 2012

CaseChat Overview and Summary

In Beattie v Premier Events Group Limited, the Court of Appeal dismissed an appeal brought by Malcolm Beattie, Anthony Regan, and several corporate entities against a decision of Wylie J, allowing Premier Events Group Limited (PEG) to join two overseas companies, Cartan Tours and Sportsmark, to a proceeding. PEG had issued proceedings against Beattie, Regan, and their corporate entities, alleging breaches of fiduciary duty and conspiracy. After Beattie and Regan left PEG, the company sought to join Cartan Tours and Sportsmark, which were allegedly involved in negotiations with Beattie and Regan regarding the 2012 Olympic Games. Wylie J found that PEG could serve the overseas companies without leave under r 6.27 of the High Court Rules, which allows for service out of New Zealand in certain circumstances.

The appellants argued that the Judge should have considered r 4.56 of the High Court Rules, which deals with joinder, before applying r 6.27. The Court found that r 4.56 was not relevant to the decision under appeal, as the primary focus was on r 6.27, which governs service on overseas parties. The Court also found that PEG's delay in seeking to serve the overseas parties did not warrant refusal of joinder, as the respondent had sufficient information to base the application on and matters had advanced to the point of contractual relations.

The Court of Appeal agreed with Wylie J that PEG's amended statement of claim was an originating document under r 6.27 and that the Judge applied the correct test in determining whether Cartan Tours was a necessary or proper party and whether there was a real issue that the Court ought to try. The appeal was dismissed, and the appellants were ordered to pay the respondent's costs on the appeal and on the application for an extension of time.

Orders