Goodfellow v Draskovich - [2015] NZCA 207

IN THE COURT OF APPEAL OF NEW ZEALAND

CA286/2015
[2015] NZCA 207

BETWEEN

WILLIAM GOODFELLOW
First Appellant

EXPLORE GROUP LIMITED
Second Appellant

AND

MARK STEPHEN DRASKOVICH AND Q.T.L. TRUSTEES (NO. 22) LIMITED
First Respondents

AUCKLAND DOLPHIN AND WHALE SAFARI (2005) LIMITED
Second Respondent

Hearing:	28 May 2015
Court:	Ellen France P, White and Miller JJ
Counsel:	R E Harrison QC and A Hansen for Appellants D Chisholm QC and M Lenihan for Respondents
Judgment:	29 May 2015 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed. The first respondents will have costs of the appeal as for a standard appeal on a Band A basis.

____________________________________________________________________

REASONS OF THE COURT

(Given by Miller J)

By minute of 18 May 2015 Venning J refused the appellants’ application for an adjournment of the substantive fixture in this proceeding, which is to commence on 8 June 2015. They now appeal.
The proceeding is a dispute among shareholders. The first and second appellants (the principal defendants in the Court below) are said to have mismanaged the financial affairs of the second respondent, Auckland Dolphin and Whale (2005) Safari Limited, to the disadvantage of the first respondents (the plaintiffs below).
The fixture was confirmed on 12 September 2014, and a timetable set then required the exchange of evidence by 2 April (plaintiffs) and 2 May (defendants).
The defendants had opposed setting down on the ground that discovery was incomplete and the plaintiffs meant to file an amended statement of claim, but the proceeding was set down by order of Gilbert J on the basis that the amendments would not materially change the nature or scope of the claim and the amended claim was to be filed by 21 November 2014. A first amended claim was filed on 1 December 2014. Discovery not having been completed, the claim was not quantified as Gilbert J appears to have envisaged, but at that stage there appears to have been no intimation that it would be amended again.
Pleadings closed on 13 May 2015 and the dates for the exchange of evidence were extended by agreement to 13 April and 13 May respectively, apparently because the defendants’ discovery was still incomplete.
Not all of the plaintiffs’ evidence was served on time. Some briefs were not received until 24 April, on which date a second amended statement of claim was also filed. It was filed without leave but no point was taken about that before Venning J and the defendants must be taken to have acquiesced. The amendment had been foreshadowed by an email of 13 April, to which the defendants’ counsel responded that it would be helpful to see a second amended claim since the first one did not quantify the claims. A supplementary brief of the plaintiffs’ expert witness was received on 27 April. Accompanying this evidence were some 34 spreadsheets together comprising several hundred pages.
The amended claim did not alter the single cause of action, which lies in oppression under s 174 of the…

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 Goodfellow v Draskovich

Details

AGLC: Goodfellow v Draskovich [2015] NZCA 207
Case: [2015] NZCA 207
Decision Date: 29 May 2015 at 11.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Goodfellow v Draskovich was heard, with William Goodfellow and Explore Group Limited as the appellants and Mark Stephen Draskovich and Q.T.L. Trustees (No. 22) Limited and Auckland Dolphin and Whale Safari (2005) Limited as the respondents. The case involves a dispute among shareholders regarding alleged mismanagement of financial affairs by the appellants, which the respondents claim has caused them harm. The substantive fixture of the proceeding was scheduled for 8 June 2015, but the appellants sought an adjournment which was denied by Venning J. The appellants then appealed the decision.

The primary legal issue before the court was whether the refusal to adjourn the substantive fixture was an appropriate exercise of judicial discretion. The court also considered the implications of the late submission of evidence by the respondents and whether the appellants would have sufficient time to adequately prepare for the trial. The court examined the nature of the amendments to the claim, whether they introduced new causes of action, and the extent to which the appellants were able to prepare a defence against the new claims.

The court concluded that the refusal to adjourn the fixture was an appropriate exercise of judicial discretion. The amendments to the claim, although material, did not introduce new causes of action, and the appellants had sufficient time to prepare their defence, particularly since the core issues were based on financial records within their control. The court held that the appellants had been aware of the heads of claim by the time the first amended claim was filed. The court further noted that the appellants could seek further relief from the trial judge if necessary and that the trial could be managed to mitigate any remaining disadvantages. Consequently, the appeal was dismissed, and the case was remitted to the High Court for further case management as necessary. The first respondents were awarded costs of the appeal on a Band A basis.

Orders