Campbell v Marble Point Winery Limited - [2017] NZHC 1412

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2017-409-000091 [2017] NZHC 1412

UNDER the Companies Act 1993

BETWEEN

R C CAMPBELL Plaintiff

AND

MARBLE POINT WINERY LTD Defendant

Hearing: 12 June 2017

Appearances:

J E Bayley for Plaintiff

M J Wallace for S P Dennis (a shareholder) No appearance for defendant

Judgment:

23 June 2017

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [on liquidation application]

Introduction

[1] Richard Campbell and Sheryl Dennis married in 2002, having previously lived together. They permanently separated in November 2014.

[2] In 2006, Ms Dennis’s family trust, the Alpenrose Trust, entered an agreement to purchase vineyard land to be subdivided off a larger block near the Waiau River.

[3] The defendant company, Marble Point Winery Ltd (Marble Point) then developed the vineyard business and a modest sheep operation which subsequently operated on the property. While Marble Point had originally been incorporated in
2005 with Ms Dennis as sole shareholder and director, the structure was

progressively changed. By early 2015, Mr Campbell was both a 50 per cent

CAMPBELL v MARBLE POINT WINERY LTD [2017] NZHC 1412 [22 June 2017]

shareholder and a co-director. In the meantime, the couple had jointly developed the vineyard business.

[4] In this proceeding, Mr Campbell asks the Court to make an order putting

Marble Point into liquidation.

[5] Ms Dennis, as a shareholder in Marble Point, opposes the application.

[6] Marble Point itself (with its two directors taking opposing positions) has taken no step in the proceeding.

Mr Campbell’s grounds of application

[7] Mr Campbell pleads the previous relationship between himself and Ms

Dennis and the breakdown of that relationship.

[8] He pleads that there should be an order putting Marble Point into liquidation for three reasons:

(a) Pursuant to s 241(4)(d) Companies Act 1993 (the Act), Marble Point cannot be appropriately managed rendering it just and equitable that it be put into liquidation;

(b)Pursuant to s 241(4)(a) of the Act, Marble Point is unable to pay its debts; and

(c) Pursuant to s 241(4)(bb) of the Act, Ms Dennis is having Marble Point continue to trade or intends to have it trade while insolvent.

[9] Ms Dennis denies that there are factual circumstances supporting any of the three grounds invoked by Mr Campbell.

[10] Ms Dennis also pleads that she and Mr Campbell are parties to proceedings commenced in the Family Court in January 2016, in which the business of Marble Point is a part of the subject-matter. Ms Dennis further pleads the existence of

another High Court proceeding in which the trustees of family trusts of the couple are parties. She pleads that Mr Campbell has commenced this proceeding for the collateral purpose of exerting pressure on her to settle the Family Court proceeding and the other High Court proceeding.

The just and equitable ground

The statutory ground

[11] Under s 241(4)(d) of the Act, the Court may appoint a liquidator if satisfied that it is just and equitable that a company be put into liquidation.

[12] The leading…

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: [2017] NZHC 1412
Decision Date: 23 June 2017

CaseChat Overview and Summary

Richard Campbell and Sheryl Dennis, who were married and separated, jointly owned and operated Marble Point Winery Ltd. Mr Campbell has applied to the High Court for an order to put the company into liquidation, which Ms Dennis opposes. The company itself has not appeared in the proceedings. Mr Campbell argues that the company cannot be appropriately managed, is unable to pay its debts, and Ms Dennis is having it continue to trade while insolvent. Ms Dennis argues that the application is for a collateral purpose in relation to other ongoing proceedings in the Family Court and another High Court case. The court found that the relationship between the parties had broken down and the company could no longer be appropriately managed. The court held that the freezing of the company's bank accounts was not conduct which created the deadlock between the parties, but was symptomatic of the deadlock which had already come into existence. The court ordered that the company be put into liquidation, with the liquidators being Wayne John Deuchrass and Iain Andrew Nellis. Ms Dennis was ordered to pay the costs of the proceedings.

Orders