Bevan Goode v Foundation Life (NZ) Limited
[2025] NZCA 456
•27 August 2025
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
CA513/2025
[2025] NZCA 456
BETWEEN BEVAN GOODE
Applicant
AND
FOUNDATION LIFE (NZ) LIMITED
Respondent
Court: Courtney and Campbell JJ Counsel:
Applicant in person
M D Arthur, J Marcetic and N D Whittle for Respondent
Judgment:
(Onthe papers)
27 August 2025 at 4.00 pm
Reasons:
9 September 2025
JUDGMENT OF THE COURT
AThe application for stay of the decision in [2025] NZHC 1786 is declined.
BCosts are reserved pending the outcome of the appeal.
REASONS OF THE COURT
(Given by Campbell J)
[1] Mr Goode appealed against a decision of Associate Judge Skelton approving a scheme of arrangement under pt 15 of the Companies Act 1993 (the Scheme) in respect of the respondent, Foundation Life (NZ) Ltd (Foundation Life).1 Pending determination of his appeal, he applied for a stay of execution of the Judge’s decision.
1 Re Foundation Life (NZ) Ltd [2025] NZHC 1786 [judgment under appeal].
GOODE v FOUNDATION LIFE (NZ) LIMITED [2025] NZCA 456 [27 August 2025]
Foundation Life opposed Mr Goode’s application. On 27 August 2025, we declined the application with reasons to follow.2 These are our reasons.
Background
[2] Foundation Life is an insurance company that sold and managed life insurance policies. Approximately 27,588 life insurance policyholders participate in Foundation Life’s insurance business profits.3
[3] Foundation Life formally launched its proposal of the Scheme on 6 May 2025. The Scheme was extensively publicised, including by having a set of documents mailed to all policyholders. Foundation Life expanded its call centre to respond to queries from policyholders.
[4] A scheme meeting was held on 9 June 2025. In total, holders of 7,838 policies voted, representing about 30 per cent of all policies on issue. Of those who voted,
96.47 per cent voted in favour of the Scheme.
[5] Foundation Life’s application for approval of the Scheme was the subject of an on-notice hearing on 25 June 2025. No policyholders opposed the application. The Judge approved the Scheme in a judgment dated 2 July 2025.
[6] Under the Scheme, the policy of each eligible policyholder resident in New Zealand is to be converted into (at the choice of the policyholder) a replacement policy provided by another insurer (Chubb Life Insurance New Zealand Ltd (Chubb Life)), a cash payment or a combination of the two.4 On 4 July 2025, Foundation Life wrote to each policyholder advising that the Scheme had been approved and inviting those resident in New Zealand to indicate the choice they wished to make under the Scheme. Such choices had to be made by 14 August 2025.
2 Goode v Foundation Life (NZ) Ltd [2025] NZCA 434.
3 Judgment under appeal, above n 1, at [4].
4 At [5].
[7] On 22 July 2025, Foundation Life sent follow-up letters to those policyholders who had yet to make a choice. On 8 August 2025, Foundation Life also sent follow-up emails to those policyholders for whom it held emails.
[8] Policyholders representing 68 per cent of policies made a choice under the Scheme.
[9] The “Effective Date” under the Scheme is 1 September 2025. On the Effective Date, all existing policies end, Foundation Life must pay to Chubb Life a premium of approximately $200 million (in a combination of in specie securities and cash) based on the value of the replacement policies, and for policyholders who are to receive a cash payment, their payments are to be calculated based on the value of their previous policy as at that date.
[10] To calculate the actual payments to Chubb Life and policyholders, Foundation Life has to crystallise the value of the participating fund by selling its investments. As at 22 August 2025 (when Foundation Life’s chief executive officer made an affidavit responding to Mr Goode’s application), Foundation Life intended to sell approximately $280 million in securities between then and 1 September 2025.
Mr Goode’s appeal and application for a stay
[11] Mr Goode filed a notice of appeal on 8 August 2025. His notice of appeal purported to be on behalf of a group that Mr Goode called the Foundation Life Policyholders Group. However, he did not identify who the other members of the Group were. Mr Goode then filed an amended notice of appeal dated 11 August 2025.
[12] A Deputy Registrar declined to accept Mr Goode’s notice of appeal for filing. In a judgment dated 18 August 2025, this Court granted Mr Goode’s application for review of the Deputy Registrar’s decision and his notice of appeal was accepted for filing.5 However, Mr Goode’s appeal was treated as one brought by himself alone,
5 Goode v Foundation Life (NZ) Ltd [2025] NZCA 407.
because there was no basis on which he could bring an appeal on behalf of unidentified members of a group.6
[13] On 18 August 2025, Mr Goode applied for a “Stay on the ruling” of the Scheme. He did not file any affidavit in support of his application. His application said the grounds for the stay were:
(a)If the Scheme proceeded as approved, policyholders may suffer irreparable harm, including financial losses and reduced entitlements.
(b)Granting a stay will allow for a thorough examination of the Scheme’s impacts and ensure that policyholders’ rights are adequately considered.
(c)The grounds of appeal raise substantial issues that merit consideration by this Court.
[14] Foundation Life opposed Mr Goode’s application. Among other things, Foundation Life:
(a)noted that Mr Goode had not attended the Scheme meeting, had not voted on the Scheme, had not filed a notice of appearance or opposition in the High Court and had not attended the High Court hearing;
(b)noted that Mr Goode had not filed his appeal on time and had never served the notice of appeal on Foundation Life; and
(c)explained, by reference to the background set out above, that a stay would have significant financial consequences for policyholders, Foundation Life and Chubb Life.
6 At [8].
Principles governing applications for a stay
[15] Under r 12(3) of the Court of Appeal (Civil) Rules 2005, the court appealed from or this Court may, pending the determination of an appeal, order a stay of the execution of the decision under appeal or grant any interim relief. Applications should first be filed in the court appealed from, rather than this Court, unless there are special circumstances.7
[16] The factors to be taken into account in determining a stay application include, as relevant to the present application:8
(a)whether Mr Goode’s appeal may be rendered nugatory without a stay;
(b)whether Foundation Life would be injuriously affected by a stay;
(c)the effect of a stay on third parties;
(d)the apparent strength of the appeal; and
(e)the bona fides of Mr Goode as to the prosecution of the appeal.
Our reasons for declining a stay
[17] We accept that Mr Goode’s appeal may be rendered nugatory without a stay. But all other factors weighed clearly against granting a stay.
[18] First, Foundation Life would have been injuriously affected by the grant of a stay. It only became aware of Mr Goode’s application when advised of it by the Registry on 19 August 2025 (Mr Goode not having served his application or, indeed, his notice of appeal). By then, as the background section of this judgment shows, Foundation Life was well advanced in its preparation for the implementation of the Scheme. Among other things, it had undertaken contractual obligations to
7 Gibson v Official Assignee [2016] NZCA 93 at [6].
8 Keung v GBR Investment Ltd [2010] NZCA 396, [2012] NZAR 17 at [11].
Chubb Life with respect to the replacement policies. A stay would have jeopardised Foundation Life’s position in that respect.
[19] Secondly, a stay would have prejudiced the position of thousands of policyholders who were expecting, imminently, to receive benefits under the Scheme. The vast majority of those policyholders had supported the Scheme.
[20] Those first and second points carry particular weight given Mr Goode’s complete lack of engagement with the Scheme prior to filing his appeal in this Court. No indication had been given to Foundation Life or to other policyholders of any challenge to the Scheme prior to the Registry informing Foundation Life of the stay application.
[21] Thirdly, the merits of Mr Goode’s appeal do not appear strong. The onus is on Mr Goode to show that there was an error in the judgment below. Mr Goode’s amended notice of appeal and his submissions in support of his stay application do not engage with the judgment of Judge Skelton and thus do not begin to show how the Judge is said to have erred.
[22] Fourthly, we have concerns about Mr Goode’s bona fides in the prosecution of his appeal. His notice of appeal was filed out of time and has not been served on Foundation Life. His notice of appeal makes very serious allegations against Foundation Life whereas Mr Goode made no such allegations (and raised no objection to the Scheme) in the High Court.
Costs
[23] Foundation Life sought indemnity costs on the application. Given the urgency with which we had to deal with the application, we preferred to reserve costs pending the outcome of the appeal.
Result
[24]The application for stay of the decision in [2025] NZHC 1786 is declined.
[25]Costs are reserved pending the outcome of the appeal.
Solicitors:
Chapman Tripp, Auckland for Respondent
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