Goldman v Kiwi Vision Limited

[2017] NZHC 1601

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2014-419-231 [2017] NZHC 1601

BETWEEN

ALLAN GOLDMAN

First Plaintiff

ALLAN GOLDMAN & A GOLDMAN FAMILY TRUSTEE LIMITED as Trustees of the Allan Goldman Family Trust

Second Plaintiffs

NZ CREATIVE MARKETING PROJECTS LIMITED

Third Plaintiff

AND

KIWI VISION LIMITED First Defendant

VC INVESTMENTS (2012) LIMITED (IN LIQUIDATION)

Second Defendant

CONTINUED OVERLEAF

Hearing:	23 May 2017
Appearances:	Mr J Haig for Plaintiffs Mr M D Branch for First, Second and Third Defendants
Judgment:	12 July 2017

JUDGMENT (No. 2) OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

12.07.17 at 11 a.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

GOLDMAN & Ors v KIWI VISION LIMITED & Ors [2017] NZHC 1601 [12 July 2017]

ANDC R J HYLAND Third Defendant

AND             I D BENTLEY and W K STARTUP, in their

Capacities as executors of the estate of

ROY WILSON Fourth Defendants

ANDA H WILSON Fifth Defendant

[1]      I gave judgment in this proceeding on 6  October 2015.1     The judgment concerned, amongst other things, an application to strike out brought by the first, second and third defendants.  The applicants subsequently sealed a judgment in the proceeding.   The plaintiffs have now applied for the correction of that judgment. The application is brought pursuant to r 11.10 of the High Court Rules (“HCR”) which provides as follows:

11.10   Correction of accidental slip or omission

(1)      A judgment or order may be corrected by the court or the

Registrar who made it, if it—

(a)       contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or

(b)       is drawn up so that it does not express what was decided and intended.

(2)      The correction may be made by the court or the Registrar, as the case may be,—

(a)       on its or his or her own initiative; or

(b)      on an interlocutory application.

[2]      More particularly, the application is brought pursuant to r 11.10(1)(b).

[3]      The Rule therefore requires consideration of whether the judgment, as drawn up, does not express what was decided and intended in the judgment.  The process that needs to be followed is to enquire whether the judgment expresses what was decided  by  me  and  what  I  intended.2    Ultimately,  the  power  to  correct  is

discretionary and should be exercised sparingly.3

[4]      As a result of the judgment which has been sealed, the Court ordered that “the first cause of action by the first and second plaintiffs against the first, third and fourth defendants as stated in paragraph 47 of the First Amended Statement of

Claim, dated 1 October 2014 be struck out”.

1      Goldman v Kiwi Vision Ltd [2015] NZHC 2441.

2      Willcocks v Teat HC Rotorua CIV-2008-463-784, 15 March 2011.

3      Bank of New Zealand v Mulholland (1991) 4 PRNZ 299 (HC).

[5]      The first and second plaintiffs accept that the cause of action brought by the first plaintiff against the first defendant was indeed ordered to be struck out.  The grounds for that decision were that while the first plaintiff, Mr Goldman, might at one stage have owned a share in Kiwi Vision Limited (“KVL”), which would give him  standing  to  apply  for  relief  against  oppression  pursuant  to  s  174  of  the Companies Act 1993, he had lost the ownership of that share by operation of law when  he  was  adjudicated  bankrupt.     Any  grounds  for  seeking  relief  against oppression did not accrue at the time when he was a shareholder in the company and therefore he had no standing to apply.

[6]      The second plaintiffs say that in effect the judgment which I issued did not strike out the entitlement of the second plaintiffs to relief against oppression brought as part of the first cause of action.

[7]      In the first cause of action, reference is made to oppressive conduct in the way the affairs of KVL had been conducted.  In the third cause of action, there was a substantially similar statement.

[8]      In the course of my judgment, I examined the question of standing to bring the proceedings.   I concluded that, in addition to the fact that Mr Goldman’s bankruptcy meant that he probably did not have standing, there were doubts about the second plaintiffs’ standing as wellfsdklfjsdklf.   The second plaintiffs did not claim to be shareholders of the first defendant.  They claimed that Mr Goldman held his share on trust for the trustees who were the second plaintiffs.

[9]      Having regard to the conclusion that Mr Goldman owned his share in the company beneficially,4  any rights which Mr Goldman might have had in respect of the share purchase option passed to the Official Assignee.  The conclusion that is set out in the following text of the relevant paragraph of the judgment then goes on to say “On these grounds, the first cause of action ought to be struck out and there will

be an order accordingly”.5   In the context, I do not consider that this can be read as

4 At [81].

5 At [81].

meaning anything other than that the claim of the second plaintiffs with regard to the

KVL option was similarly struck out.

[10]     The overall tenor of the judgment makes it clear that I considered both the rights of the first and second plaintiffs in relation to an option to acquire shares in KVL.  I did not overlook that both plaintiffs were seeking relief under s 174 in that cause of action and with that knowledge made an order striking out the first cause of action.  The meaning and intendment of my judgment was plain.  Both the causes of action of the first and second plaintiffs were struck out.

[11]     I am not required in this judgment to examine the reasoning of the judgment and to review it.  For better or for worse, the judgment has now been reached and the only question is what it decided.  There is not an issue as to whether it was correctly decided.

[12]     The judgment is also explicit in dismissing the third cause of action, which seems to have been a duplication of the second plaintiffs’ claims put forward under the first cause of action.  Again, there does not seem to be any reason to go behind what I expressly said at paragraph [90] of the judgment.   In my view, the first to

third defendants were entitled to sealed judgment in its current form.

J.P. Doogue

Associate Judge