Boult v Cain

[2022] NZHC 3110

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-196

[2022] NZHC 3110

UNDER

the Companies Act 1993

IN THE MATTER

of an application to reverse or modify a

liquidator’s decision in the liquidations of Stonewood Homes Limited (in liquidation), Stonewood Homes New Zealand Limited (in liquidation) and Holmfirth Group

Limited (in liquidation)

BETWEEN

JAMES BOULT and BRENT ALFRED METTRICK

Applicants

AND

RHYS JAMES CAIN

Respondent

Hearing:

On the papers

Appearances:

R K P Stewart for Crux Publishing G J Ryan for Applicants

J K Stringer for Respondent M J Borcoski for G Ball

Judgment:

25 November 2022

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 25 November 2022 at 3.15 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BOULT and METTRICK v CAIN [2022] NZHC 3110 [25 November 2022]

Introduction

[1]                This litigation arises in the course of the liquidation of the Stonewood Group of companies. Mr Cain is the remaining liquidator of those companies. Mr Boult and Mr Mettrick, the applicants, were the directors of the companies.

[2]                Mr Cain initiated proceedings alleging the directors breached the duties they owed to the companies (the Directors’ Duties Proceedings). However, the Directors’ Duties Proceedings were settled when the parties entered into a confidential settlement agreement dated 23 July 2021.

[3]                The current proceedings were initiated by the directors to reverse the liquidator’s decision to allow the liquidation committee of Stonewood Homes Limited (in liq) to inspect some of the Court documents relating to the proceeding (the Liquidation Decision Proceedings).

The application for Access to Court Documents

[4]                The application I have before me is an application by Crux Publishing Ltd (Crux) for access to Court documents. Crux operates a website publishing news and articles of interest to the Southern Lakes Area of New Zealand. Mr Boult was formerly the mayor of Queenstown Lakes District Council and Crux took a particular interest in Mr Boult’s role in the collapse of the Stonewood Group of companies.

[5]                To that end, Crux has been following the Directors’ Duties Proceedings and made an application for access to Court documents in respect of those proceedings. While it was initially granted access to some documents by the High Court1 the Court of Appeal subsequently ruled that Associate Judges have no jurisdiction to grant access to court documents and the application is still to be determined by a High Court Judge.

[6]                Crux has now become aware of these separate Liquidation Decision Proceedings and seeks access to certain documents on the Court file.

1      Cain & Logan v Mettrick & Boult [2022] NZHC 258.

[7]In its application, Crux says it seeks access to the documents because:

The public has a genuine interest in knowing about litigation involving the collapse of a substantial group of companies owing many millions of dollars to creditors … Access to these documents will assist Crux to fairly and accurately report the nature and purpose of the proceeding.

[8]The documents which are sought are:

(a)any statement of claim or originating application (including any amended version of the same);

(b)any statement of defence or notice of opposition (including any amended versions of the same); and

(c)any judgment, order, ruling, minute or direction made by the Court in relation to the proceeding (including any reasons).

[9]                The application was made on 18 August 2022. On 23 August 2022, counsel for Mr Boult filed a memorandum in opposition to the request for access. In it he said:

(a)Crux is not independent and has shown by its actions to have apparent bias and partiality against Mr Boult, and there is a high risk of unfair and unbalanced reporting.

(b)There is minimal, if any, public interest in the subject of this proceeding and any public interest such as there may be can be satisfied by release of the judgment which will follow the hearing on 24 August 2022.

[10]            Regrettably, this matter has only recently been referred to me for determination, noting that several of the Christchurch High Court Judges have a conflict of interest in respect of these proceedings.

The Access to Court Documents Rules

[11]            The application is governed by the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). Under r 8(1) every person has the right to access the formal

Court record relating to a civil proceeding except where that is limited or prohibited by any enactment or Court order or direction.2 The formal Court record is defined, in r 4, to include any of the following kept in a registry of the Court:

… a judgment, an order, or a minute of the court, including any record of the reasons given by a Judge.

[12]            In respect of documents that are not part of the formal Court record, access is governed by rr 11 – 13. Rule 12 sets out the matters the Court must consider in determining a request for access under r 11. They are:

(a)the orderly and fair administration of justice:

(b)the right of a defendant in a criminal proceeding to a fair trial:

(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:

(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:

(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):

(f)the freedom to seek, receive, and impart information:

(g)whether a document to which the request relates is subject to any restriction under rule 7:

(h)any other matter that the Judge thinks appropriate.

[13]            To the extent Crux is seeking a copy of any judgment, order, or minute of the Court under r 8, it is entitled to that as of right, noting there are no enactments or Court orders limiting or preventing such access. Indeed, Crux already has access  to Paulsen AJ’s judgment dated 20 September 2022 through the Ministry of Justice database of judgments found on the website, Judicial Decisions Online.3

2      Senior Courts (Access to Court Documents) Rules 2017, r 6.

3      Boult v Cain [2022] NZHC 2402.

[14]            It is also entitled to any orders or minutes of the Court, although I note these are all of a pedestrian and procedural nature and shed no light on the issues Crux says it wishes to report on.

[15]            The only other documents on file which are requested are the pleadings, and the only document which is within this category is the originating application to reverse or modify a decision of a liquidator pursuant to s 284 of the Companies Act. There is no notice of opposition. Given the application does no more than signal the issues which are traversed in the judgment, I do not consider there is any privacy interest or fair trial concern which outweighs the principle of open justice and which would warrant declining the application for access.

[16]            As already indicated, the application is opposed on the grounds that Crux cannot be relied on to report fairly and accurately on the proceedings. However, I place little weight on this consideration in the present case. This is because:

(a)the decision of Paulsen AJ is already publicly available;

(b)I am not authorising the release of any documents which disclose more than is evident from Paulsen AJ’s decision; and

(c)to the extent Mr Boult has concerns about the accuracy of Crux’s reporting, he has the ability to take these concerns to the New Zealand Media Council.

[17]            I also do not consider this conclusion is affected by the appeal regarding Crux’s access to documents for the Directors’ Duties Proceeding file. There has been no substantive finding that Crux should not get access to core documents in those proceedings and I have reached the view, that it is appropriate to grant access having regard to the relevant considerations in the Rules.

Outcome

[18]            I grant the application by Crux for access to the originating application brought by Mr Boult and Mr Mettrick to reverse or modify a decision of a liquidator pursuant to s 284 of the Companies Act 1993.

[19]            I do not need to determine the balance of the application, as the applicant has access to these documents as of right.

Solicitors:

White Fox & Jones, Christchurch Wynn Williams, Christchurch

Saunders Robinson Brown, Christchurch

Copy To:
Mr R Stewart, Barrister, Auckland