Fugle v Fisk - [2022] NZHC 3253

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-136

[2022] NZHC 3253

UNDER the Companies Act 1993 and other statutes

IN THE MATTER OF

Vey Group Limited (in receivership and liquidation)

BETWEEN

LESLIE WILLIAM FUGLE

First Applicant

AOKAUTERE LAND HOLDINGS LIMITED

Second Applicant

AND

JOHN HOWARD ROSS FISK and

RICHARD JOHN NACEY as liquidators of Vey Group Limited (in receivership and
liquidation)
First Respondents

VEY GROUP LIMITED (in receivership and liquidation)

Second Respondent

Hearing: 5 December 2022

Counsel:

J K Mahuta-Coyle for the Applicants R Pinny for First Respondents

R L Roff for Trustees of Orana Trust

Judgment:

6 December 2022

JUDGMENT OF GWYN J

(Application for stay of execution of judgment)

FUGLE v FISK & NACEY [2022] NZHC 3253 [6 December 2022]

Application

[1] This is an application brought by Leslie Fugle and Aokautere Land Holdings (ALHL) for orders staying execution of the Court’s decision in Fisk v Turvey,1 pending determination of the applicants’ appeal to the Court of Appeal.

[2] The application is opposed by the first and second respondents and the trustees of the Orana Trust, who were the first interested parties in the judgment. The receiver of ALHL did not appear on the application.

Background

[3] This matter has a lengthy background, which is set out in detail in the judgment at [1]-[42].

[4] In summary, Vey Group Limited (in liquidation and receivership) (the Company) was placed into liquidation by the Court on 9 December 2020.2

[5] Prior to the liquidation, on 12 June 2020 the Court of Appeal appointed John Fisk and Richard Nacey as receivers to the Company.3

[6] The appointment was made in the context of a proceeding brought by the trustees of the Orana Trust (then a shareholder of the Company) (the Trustees) against the Company and Mr Fugle, under s 174 of the Companies Act 1993. Mr Fugle is the director and sole shareholder of both the Company and ALHL. The Trustees alleged that the Company, through Mr Fugle, was being conducted in a manner that was oppressive, unfairly discriminatory and unfairly prejudicial to Orana as minority shareholder.4 There were a range of issues in the conduct of the Company of concern

1      Fisk v Turvey [2022] NZHC 2462, delivered on 27 September 2022 (judgment).
2      Vance (as trustees of Orana Trust) v Vey Group Ltd [2020] NZHC 2592 at [24].
3      Vey Group Ltd v Vance [2020] NZCA 232, [2021] 2 NZLR 541 at [71].
4      The Court of Appeal concluded that “the actions of Mr Fugle amounted to a serious and visible departure from the standards of fair dealing expected in the managment of a company, and that as a result the affairs of Vey have been conducted in a manner that is oppressive, unfairly discriminatory and unfairly prejudicial to the respondents as minority shareholders”: Vey Group Ltd v Vance above n 3, at [53].

to Orana. One of those was a dispute between Orana and…

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 Fugle v Fisk

Details

AGLC: Fugle v Fisk [2022] NZHC 3253
Case: [2022] NZHC 3253
Decision Date: 6 December 2022

CaseChat Overview and Summary

This case involved an application by Leslie Fugle and Aokautere Land Holdings Limited to stay the execution of a judgment pending appeal. The judgment had ordered the sale of a property owned by Vey Group Limited, which was in liquidation. The respondents to the application were the liquidators of Vey Group Limited and the trustees of the Orana Trust, who were the first interested parties in the judgment. The court was required to decide whether to grant a stay of execution pending appeal, and if so, on what terms. The court considered various factors, including the merits of the appeal, the effect on third parties, the overall balance of convenience, and the apparent strength of the appeal. The court found that the merits of the appeal were weak, that the effect on third parties would be detrimental, and that the balance of convenience favoured denying the stay. The court also found that the applicants had not demonstrated a bona fide basis for seeking a stay. The application was therefore dismissed.

Orders