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Corrick v Silich

Corrick v Silich

Case [2017] NZHC 1630 14 July 2017

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001805 [2017] NZHC 1630

BETWEEN
DAVID CORRICK

First Plaintiff

STEVEN MITCHELL Second Plaintiff

DAVID PRALONG Third Plaintiff

PAUL STENT Fourth Plaintiff

MATTHEW WILCOCK Fifth Plaintiff

AND

ROBERT SILICH First Defendant

…/contd

Hearing: 26 June 2017

Appearances:

D Zhang for Plaintiffs
D Marriott for First to Fifth Defendants
No appearance for Sixth to Sixteenth Defendants

Judgment:

14 July 2017

JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 14 July 2017 at 4.00pm Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

Solicitors/counsel: Amicus Law, Auckland
Hollister Jones Lellman, Tauranga/D Marriott, Auckland

CORRICK v SILICH [2017] NZHC 1630 [14 July 2017]

GLENN MCCREADY Third Defendant

FRANK PARKER Fourth Defendant

BRETT EMENY Fifth Defendant

DARRYL MCEVEDY Sixth Defendant

ALISTAIR RUSSELL Seventh Defendant

ALISTAIR SCOTT Eighth Defendant

BRYAN LOCKIE Ninth Defendant

DOUG MOULIN Tenth Defendant

MICHAEL JENKINS Eleventh Defendant

KEN MULGREW Twelfth Defendant

BRIAN STEWART Thirteenth Defendant

BLAIR O’BRIEN
Fourteenth Defendant

DARYL HONE Fifteenth Defendant

ANDREW GORMLIE Sixteenth Defendant

Introduction

[1] All parties to this proceeding are members of a syndicate known as the Trojan

63 syndicate (the “syndicate”). The syndicate members owned an aircraft – a Trojan T28C, serial number 563, registration number ZK-JGS. They resolved to sell the aircraft in November 2014, and the first plaintiff (Mr Corrick), the third defendant (Mr McCready), the fourth defendant (Mr Parker), and the 16th defendant (Mr Gormlie), were appointed as a management group (the “management group”) to oversee the sale.

[2] The plaintiffs allege that the sale proceeded on an “open tender” basis and that they were the successful tenderers. They say that a contract was then concluded between them and other syndicate members. They allege that rather than sell the aircraft to them, syndicate members sold it to the fifth defendant, Mr Emeny. They
allege breach of contract against all defendants,1 breach of fiduciary duty against the

first to fifth defendants, tortious interference with contractual relations against Mr

Emeny, and conversion against the first to fifth defendants.

[3] The first to fifth defendants deny that there was a contract concluded with the plaintiffs, and/or that they owed distinct fiduciary duties specifically to the plaintiffs. Mr Emeny denies that the plaintiffs had a binding contract with syndicate members, and/or that he procured a breach of such contract (if any) as was in place. The first to fifth defendants also deny conversion, asserting that the plaintiffs had no right to possession of the aircraft. As an affirmative defence, the first to fifth defendants allege breach of fiduciary duty by Mr Corrick. They assert that he was conflicted because he was both a tenderer and a member of the management group overseeing the sale.

[4] All other defendants chose not to be represented. The 7th, 8th, 9th, 10th, 11th,

13th, 15th and 16th defendants indicated that they would abide the decision of the
Court. In so far as I am aware, the 6th, 12th and 14th defendants have taken no steps…

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.

Continue reading Corrick v Silich

Details

AGLC: Corrick v Silich [2017] NZHC 1630
Case: [2017] NZHC 1630
Decision Date: 14 July 2017

CaseChat Overview and Summary

Corrick and others brought claims against the members of a syndicate that owned an aircraft, alleging that they were the successful tenderers for the sale of the aircraft but that the syndicate members sold the aircraft to one of the syndicate members, Mr Emeny. The plaintiffs claimed breach of contract, breach of fiduciary duty, tortious interference with contractual relations and conversion. The defendants denied the allegations and raised counter claims of breach of fiduciary duty by Mr Corrick. The court considered whether a contract had been concluded between the plaintiffs and other syndicate members, whether there had been a breach of fiduciary duty, whether there had been tortious interference with contractual relations and whether there had been conversion. The court found that there was no concluded contract between the plaintiffs and other syndicate members because the sale process was not clearly defined and the plaintiffs’ offer was not accepted. The court also found that the defendants did not breach fiduciary duties owed to the plaintiffs and that the plaintiffs’ claims of tortious interference with contractual relations and conversion failed because they were predicated on the existence of a concluded contract, which the court found did not exist. The plaintiffs’ claims were dismissed and the defendants were awarded their costs.

Orders