IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CIV–2018–409–000229
[2020] NZHC 1105
UNDER s 34 of the Receiverships Act 1993 IN THE MATTER
of the receivership of Tuam Ventures Limited (in rec and in liq)
BETWEEN
COLIN ANTHONY GOWER and
STEPHEN JOHN TUBBS as receivers of Tuam Ventures Limited (in rec and in liq) Applicants
AND
FTG SECURITIES LIMITED
First Respondent
AND
ROBERT BRUCE WALKER as liquidator of Tuam Ventures Limited (in rec and in liq) Second Respondent
AND
BANK OF NEW ZEALAND
Third Respondent
AND
CROWN ASSET MANAGEMENT
Fourth Respondent
AND
B J HUNT
Fifth Respondent
Representation: A J Forbes QC and H Weston for FTG Securities Ltd R P Coltman for Crown Asset Management Ltd
K M Paterson and A E Cao for Bank of New Zealand J Appleyard for C A L Gower and S J TubbsR B Walker in person
Judgment:
25 May 2020
(Determined on the papers)
GOWER v FTG SECURITIES LIMITED [2020] NZHC 1105 [25 May 2020]
JUDGMENT OF OSBORNE J
(on application for disqualification of lawyers)
[1] Robert Bruce Walker, the second respondent in this proceeding (sued as liquidator of Tuam Ventures Ltd (in rec and in liq) (Tuam Ventures)), applies for an order restraining named persons from acting in this proceeding or any other proceeding relating to the liquidation of Tuam Ventures. The named persons are two solicitors, Grant Smith and Clive Cousins, and their legal entity, NZ Legal Ltd (known as “Canterbury Legal”). Throughout this proceeding, which was commenced on 17 April 2018, Mr Smith has been the solicitor for FTG Securities Ltd (FTG), the first respondent in the proceeding.
Background
[2] This is one of four proceedings which have a close relationship, such that an order for their consolidation was made.
[3] There are five sets of parties appearing in the proceeding, all represented by solicitors except Mr Walker, who appears in person. On 21 October 2019, the consolidated proceedings were set down for hearing subsequently scheduled to commence on 18 May 2020. With the intervention of COVID-19 restrictions, the hearing was on 30 April 2020 rescheduled to commence on 8 June 2020 (four days reserved). The pre-hearing timetable was amended to include, amongst other directions, that Mr Walker file and serve his submissions in one of the related proceedings (the -511 proceeding) by 15 May 2020 and his submissions in this proceeding (the -229 proceeding) by 22 May 2020.
[4] All the proceedings require expeditious resolution. They concern significant contested funds in relation to which the receivers of Tuam Ventures filed the application for directions in this proceeding as long ago as April 2018.
Present application
[5] Mr Walker applies specifically for an order restraining Messrs Smith and Cousins and Canterbury Legal from acting in this proceeding, or any other proceeding
relating to the liquidation or receivership of Tuam Ventures. The notice of application is dated 15 May 2019 but it was not filed and served until 20 May…
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- AGLC
- Gower v FTG Securities Ltd [2020] NZHC 1105
- Case
- [2020] NZHC 1105
- Decision Date
CaseChat Overview and Summary
The substantive issue before the Court was whether the application to disqualify the solicitors was an abuse of process. The Court found that the application was an abuse of process due to the significant delay in bringing the application, which was brought just two weeks before a four-day hearing. The Court found that the application was made in bad faith and without adequate justification, and that it would prejudice FTG's right to choose its own representation. The Court also noted that the application was inappropriate as it sought to restrain the solicitors from acting in any other proceeding relating to the liquidation of Tuam Ventures, rather than just the proceeding in which the application was brought.
The Court dismissed the application and ordered Walker to pay the costs of the first respondent in opposing the application. The Court reserved the quantum of costs and disbursements, with the first respondent to file a memorandum in relation to quantum within 20 working days, and Walker to file a memorandum in reply within five working days thereafter. The Court also noted that it was tentatively of the view that the first respondent was entitled to increased costs under r 14.6(3)(b)(ii) on the basis that the application lacked merit. The Court reserved costs as between Walker and the other parties involved in the proceeding.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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