Grant v Joseph - [2022] NZHC 142

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2021-485-277

[2022] NZHC 142

BETWEEN
DAMIEN MITCHELL GRANT

Applicant

AND

TIAVARE RICHARD CURTIS JOSEPH

Respondent

Hearing: 8 February 2022

Counsel:

W van Roosmalen for Applicant No appearance for Respondent

Judgment:

11 February 2022

RESERVED JUDGMENT OF CHURCHMAN J

Background

[1] The applicant is the liquidator of Options Trading and Investments NZ Limited (in liquidation) (“the Company”).

[2] The respondent acted as the sole director of the Company and holds documents on behalf of the Company.

[3] The applicant has issued written notices to the respondent pursuant to s 261(1) of the Companies Act 1993 (the Act) requesting the provision of the books and records of the Company.

[4] The applicant has sent notices to the respondent pursuant to s 261(3)(c) of the Act requesting the attendance of the respondent at an interview under oath.

GRANT v JOSEPH [2022] NZHC 142 [11 February 2022]

[5] The respondent has failed to provide the books and records as requested, or to attend an interview under oath as requested.

[6]On 3 August 2021, Associate Judge Johnston made orders that the respondent:

(a)produce the books, records and documents of the company under his control;

(b)attends an interview under oath or affirmation; and

(c)pays costs to the liquidator on a 2B basis in the sum of $9,130.50.

[7] On 27 August 2021, the respondent was served with the sealed Court order. The respondent has failed to comply with the sealed order.

Contempt application

[8] By interlocutory application dated 30 November 2021, the applicant applied for the following orders:

(a)that the respondent be held in contempt of Court;

(b)that the respondent pay a fine of $10,000 or such other amount as the Court thinks appropriate, payable in whole or in part to the applicant;

(c)that unless the respondent complies with the Court order dated 3 August 2021 within 10 working days, the respondent will be imprisoned; and

(d)that the respondent pays the applicant’s costs of and incidental to this application.

[9] An affidavit of service dated 15 December 2021 has been filed confirming that the respondent, on 7 December 2021, was served with the following documents:

(a)interlocutory application on notice for contempt dated 30 November 2021;

(b)affidavit of Damien Grant sworn on 24 November 2021 in support of the application; and

(c)order of substituted service dated 15 July 2021.

The law of contempt

[10] The law of contempt in New Zealand is now governed by the Contempt of Court Act 2019. This Act codified the prior common law.

[11] Section 16 provides that certain Court orders may be enforced. The orders made by Associate Judge Johnston in this case fall within the type of order able to be enforced. Section 16(2) provides that the Court may enforce an order against a party, non-party or other person bound by the order by taking action provided for in subs (3) and (4) of the section on application by:

(a)the party who…

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 Grant v Joseph

Details

AGLC: Grant v Joseph [2022] NZHC 142
Case: [2022] NZHC 142
Decision Date: 11 February 2022

CaseChat Overview and Summary

Damien Mitchell Grant, as liquidator of Options Trading and Investments NZ Limited (in liquidation), applied to the High Court for an order that Tiavare Richard Curtis Joseph be held in contempt of court. The respondent had been ordered to provide books and records and to attend an interview under oath but had not complied. The applicant sought an order that the respondent be held in contempt of court, be fined, and be imprisoned if he did not comply with the court's orders within 10 working days. The court considered whether the requirements of the Contempt of Court Act 2019 were met and whether the appropriate sanction was a fine or imprisonment. The court found that the respondent had knowingly failed to comply with the court's orders, and that a fine was the appropriate sanction. The court imposed a fine of $8,000, apportioned 50 per cent to the Crown and 50 per cent to the applicant.
The court held that the respondent was in contempt of court and was liable to pay a fine of $8,000. The court apportioned the fine 50 per cent to the Crown and 50 per cent to the applicant. The court did not order imprisonment as it found that the conduct of the respondent did not warrant such a severe penalty. The court noted that imprisonment was a remedy of last resort and was only appropriate in cases of deliberate and repeated failure to comply with an injunction or similar order of the court. In this case, the court found that the respondent's conduct, while in contempt of court, did not amount to such a serious breach as to warrant imprisonment.

Orders