Goodwin v Copland - [2015] NZHC 2124

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2013-412-000124 [2015] NZHC 2124

BETWEEN
WAYNE ERNEST GOODWIN

Plaintiff

AND

BRIAN STEWART COPLAND Defendant

Hearing: 25 August 2015

Appearances:

A Beck for Plaintiff
J C D Guest for Defendant
G E Slevin for Official Assignee (written submissions only)

Judgment:

3 September 2015

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] Mr Goodwin applies for an order under either s 119 or s 221 of the Insolvency Act 2006 assigning to him the cause of action in the present proceeding, which passed to the Official Assignee on his adjudication in bankruptcy.

Background

[2] In 2004 Mr Copland filed a proceeding in the High Court against Mr Goodwin arising from a number of investments he had made in a company controlled by Mr Goodwin, which failed resulting in the loss of the investments. The proceeding was due to be tried in May 2006, but shortly before that the parties reached a settlement agreement. Apart from providing that Mr Copland would receive an agreed sum of money and a contribution towards costs, the agreement also reflected concerns Mr Goodwin had about material which had been posted on a website by providing for that material to be removed. The relevant clause of the agreement is in the following terms (with the name of the website deleted for the
purposes of this judgment):

GOODWIN v COPLAND [2015] NZHC 2124 [3 September 2015]

The Plaintiff will cause the present reference to the Defendant on the website [deleted] together with all accompanying documents, to be removed ~~immediately~~ as soon as reasonably practicable.

[3] The payments agreed to in settlement were not made, so as permitted by the settlement agreement, judgment was entered for Mr Copland on an admission of claim on 11 October 2006. Mr Copland took enforcement steps which resulted in his recovering part of the judgment debt.

[4] In March 2010, Mr Goodwin applied for an order setting aside the judgment on the ground that he had learned of an entry about him on the same website, which he maintained amounted to a breach of the settlement agreement. Full details of the facts which led to this application are contained in the judgment of this Court by
Associate Judge Faire.1 The Court refused to set aside the judgment either under the

High Court Rules or under the Court’s inherent jurisdiction. Argument on the latter basis revolved around a submission on behalf of Mr Goodwin that the obligation on Mr Copland in relation to removal of material from the website was a continuing one, not one confined only to removing the material immediately after the settlement agreement was reached. The learned Judge found that the material before the Court did not enable him to undertake a careful consideration of the interpretation of the terms of the settlement or even to rule on what material might be admitted, taking
into account the principles in Boatpark Ltd v Hutchinson.2 The Judge also said that

if Mr Goodwin could mount…

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 Goodwin v Copland

Details

AGLC: Goodwin v Copland [2015] NZHC 2124
Case: [2015] NZHC 2124
Decision Date: 3 September 2015

CaseChat Overview and Summary

In Goodwin v Copland, the plaintiff, Mr Goodwin, sought to have his cause of action against the defendant, Mr Copland, assigned from the Official Assignee to himself. The cause of action arose from a failed investment in a company controlled by Mr Goodwin, which led to a settlement agreement between the parties in 2006. Mr Copland obtained judgment against Mr Goodwin in 2006 after the latter failed to make payments agreed to in the settlement. Mr Goodwin subsequently applied to set aside the judgment, alleging a breach of the settlement agreement, but these applications were unsuccessful. In 2012, Mr Goodwin applied for a stay of the 2006 judgment and enforcement proceedings, which were also unsuccessful. Mr Copland then applied to have Mr Goodwin adjudicated bankrupt, and the Court made an order of adjudication. Mr Goodwin appealed this decision unsuccessfully to the Court of Appeal. The Official Assignee subsequently decided not to proceed with the claim against Mr Copland. Mr Goodwin applied under ss 119 and 221 of the Insolvency Act 2006 for an order assigning his cause of action against Mr Copland from the Official Assignee to himself. The court found that the Official Assignee had not made a valid disclaimer of the proceeding and dismissed the application under s 119. The court also dismissed the application under s 221, finding that the right to sue referred to in s 221 must be a right conferred on the Assignee by the Insolvency Act, and not a right which had already vested in the Official Assignee. The court found that there was no proper basis to set aside the notice of discontinuance filed by the Official Assignee. The application was dismissed.

Orders