Burger Fuel Group Limited v Mason Trustee Limited

[2024] NZHC 230

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002579

[2024] NZHC 230

UNDER

Part 19 of the High Court Rules

IN THE MATTER OF

a scheme of arrangement under Part 15 of the Companies Act 1993

BETWEEN

BURGER FUEL GROUP LIMITED

Applicant

AND

MASON TRUSTEE LIMITED

First Respondent

NEW ZEALAND SHAREHOLDERS’ ASSOCIATION INCORPORATED

Second Respondent

On the papers

Counsel:

S M Hunter KC and D T Broadmore for Applicant

D J Cooper KC, D M Hughes and L Scott for First Respondent R F Wallis and L C Bercovitch for Second Respondent

Judgment:

19 February 2024

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 20 February 2024 at 10:30 am pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………..

Counsel/Solicitors:

S M Hunter KC, Auckland D Cooper KC, Auckland Buddle Findlay, Auckland Anthony Harper, Auckland Chapman Tripp, Auckland

BURGER FUEL GROUP LTD v MASON TRUSTEE LTD [2024] NZHC 230 [19 February 2024]

[1]    By application dated 2 February 2024, Ms Kate McVicar of the National Business Review (NBR) applies under the Senior Courts (Access to Court Documents) Rules 2017 (Access Rules) for all documents relating to the proceeding commenced by Burger Fuel Group Ltd (Burger Fuel) for a scheme of arrangement under pt 15 of the Companies Act 1993, including the notice of opposition filed by Mason Trustee Ltd (Mason Trustee) and the notice of appearance filed by the New Zealand Shareholders’ Association Inc (Shareholders’ Association).

Nature and state of progress of the proceeding

[2]    Under the orders sought, a scheme would be approved by which a percentage of shares in Burger Fuel would be cancelled, together with rights attaching to those shares, and shareholders would receive a specified amount for each share cancelled.

[3]    To date, the only party to file a notice of opposition to the application is Mason Trustee, the trustee of the Mason Family Trust, which is the beneficial owner of shares in Burger Fuel. The Shareholders’ Association, a non-profit membership organisation, has filed a notice of appearance.

[4]Under initial orders made by Lang J on 30 October 2023:

(a)service of Burger Fuel’s application was dispensed with except as provided for in detailed orders specifying how service was to be effected; and

(b)the Court file may not be searched, inspected or copied without the leave of the Court, on notice to Burger Fuel.

[5]    A hearing of the application was set down for 5 February 2024 but was adjourned to 8 May 2024.

Grounds for NBR application

[6]    The stated grounds for the NBR application are that there is a public interest in the case, Burger Fuel is a publicly listed company and access to the documents will allow for greater understanding of a case that directly impacts investors.

Positions of parties on the application

[7]    The Shareholders’ Association does not have any concerns with the NBR application.

[8]    As stated in memoranda filed by their counsel, Burger Fuel and Mason Trustee do not object to the application in part. That is, they do not object to the NBR being provided with access to identified pleadings and identified minutes but object to the NBR having access to the affidavits and memoranda of counsel on the Court file.

[9]Burger Fuel’s stated reasons for objecting to wider access are:

(a)Burger Fuel is a publicly listed company and is required to provide material information to its shareholders.

(b)Burger Fuel has provided full information on the proposed scheme of arrangement to its shareholders and that information is publicly available through the New Zealand Stock Exchange.

(c)Providing greater access would risk confusion through inadvertent incorrect or unbalanced reporting.

(d)The affidavits and memoranda contain or reference commercially sensitive information.

(e)The affidavit filed by Mason Trustee contains allegations that are untested and denied.

[10]The memorandum of counsel for Burger Fuel also notes that:

(a)among the matters to be considered when deciding applications for access under r 12 of the Access Rules is the right to bring and defend civil proceedings without disclosing any more information about commercially sensitive matters than is necessary;

(b)there is no hierarchy in the matters listed in r 12; and

(c)r 13 recognises that, before the substantive hearing, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited.

[11]Mason Trustee’s stated reasons for objecting to wider access are that:

(a)the proceeding is not yet at the substantive stage so the protection of confidentiality and privacy interests should be afforded more prominence than open justice, as recognised in r 13;

(b)the public interest is met by providing access to the pleadings and minutes; and

(c)Mason Trustee has not had an opportunity to respond to affidavits filed by Burger Fuel, which contain untested statements.

Discussion

[12]   This proceeding is clearly at an early stage. The substantial hearing is now not to be heard until May 2024. Accordingly, as both counsel have observed, in this pre- hearing phase, the protection of confidentiality and privacy interests and the orderly and fair administration of justice may require that access to documents be limited, as recognised in r 13(a) of the Access Rules.

[13]   Even so, and having regard to the number of shareholders of Burger Fuel, the public interest in a company of that scale and in the nature of the proposed arrangement, and having regard to the principle of open justice and the freedom to

seek and impart information, I agree that the NBR should be provided access to the pleadings that have been filed to date and to minutes that have been issued to date. However, if access were limited, as advocated by Burger Fuel and Mason Trustee, the NBR would still have to apply for access to any future pleadings and minutes — assuming it knew there was a reason to apply.

[14]   Notwithstanding that the proceeding is at an early stage, and while I accept that, in accordance with r 13, the protection of confidentiality and privacy interests may require access to be limited, I do not consider it appropriate to restrict access to future pleadings, in particular any notices of opposition filed by other shareholders or public interest groups. Nor do I consider it appropriate to restrict access to future minutes or other orders made by the Court, especially as:

(a)under rr 4 and 8 of the Access Rules, there is a public right of access to the formal court record, which includes any judgments, orders and minutes of the Court; and

(b)should there be a need to limit access to a particular judgment, order or minute, there is power to do so under r 5(2).

[15]   For the rest, however, I agree that access should not be allowed to affidavits and memoranda at this early stage for the reasons advanced by both sets of counsel.

Result

[16]   I order that the National Business Review be provided access to the following documents on the Court file for this proceeding:

(a)interlocutory application without notice dated 27 October 2023;

(b)originating application dated 27 October 2023;

(c)notice of opposition of Mason Trustee Ltd dated 17 January 2024;

(d)any other notices of opposition filed to the originating application dated 27 October 2023;

(e)notice of appearance of the New Zealand Shareholders' Association Inc dated 24 January 2024;

(f)any other notices of appearance filed in the proceeding;

(g)interlocutory application by Mason Trustee Ltd seeking an adjournment dated 24 January 2024;

(h)any other interlocutory application filed in the proceeding and any notices of opposition to any such application, subject to any restrictions that may be ordered; and

(i)all judgments, orders and minutes of the Court, subject to any restrictions that may be ordered.

G J van Bohemen J