Green v Gillette - [2020] NZCA 533

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA278/2019
[2020] NZCA 533

BETWEEN	THOMAS PATTON GREEN Appellant
AND	NATHAN DANIEL GILLETTE Respondent

Court:	Cooper and Clifford JJ
Counsel:	Appellant in person Respondent in person
Judgment: (On the papers)	30 October 2020 at 3 pm

JUDGMENT OF THE COURT

AThe application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005 is declined.

B The appeal is to be treated as abandoned under r 43(1).

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REASONS OF THE COURT

(Given by Cooper J)

Mr Green has applied for an extension of time to file the case on appeal and apply for the allocation of a hearing date under r 43(2) of the Court of Appeal (Civil) Rules 2005 (the Rules).
The appeal is against a judgment of Cooke J in which the Judge upheld a claim made by the respondent, Mr Gillette, for relief under s 174 of the Companies Act 1993.[1] In 2014, Mr Green formed a company called Sunpower Ltd (Sunpower). Mr Green and Mr Gillette entered into a shareholders’ agreement on 18 January 2016, under which Mr Gillette obtained the right to acquire up to 49 per cent of the shares in Sunpower for a total of $98,000, which he paid shortly afterwards.
[1]Gillette v Green [2019] NZHC 946 [High Court judgment].
There was also an employment agreement dated 21 January 2016, executed by Mr Gillette and Sunpower. This provided for a 90-day trial period, and an annual salary of $60,000 with potential bonuses payable if sales targets were met. However, the relationship between the parties deteriorated and by the end of March 2016 Mr Green had advised Mr Gillette that Sunpower did not have sufficient money to pay Mr Gillette’s salary. Payments of salary ceased, and Mr Gillette subsequently ceased working for Sunpower in July 2016.
Mr Gillette brought proceedings in the Employment Relations Authority (the ERA). The ERA decided Mr Gillette had been wrongly deprived of his salary and that he had been unjustifiably dismissed.[2] It ordered the company to pay him $26,043.96 for arrears of salary between 22 February 2016 and 28 July 2016, and imposed a penalty of $10,000.
[2]Gillette v Sunpower Ltd [2017] NZERA Christchurch 1.
On 18 August 2016 Mr Green incorporated a new company, Sunpower Solar Ltd (Sunpower Solar). Sunpower Solar acquired Sunpower’s assets on or about 6 September 2016. Mr Gillette did not know about these developments at the time. Mr Green then took steps to market the business for sale. He was able to sell it to BSC Shipping for $120,000, after negotiating an employment contract with a related company under which he was to be paid a salary of $80,000 with potential bonuses. Once again, Mr Gillette was not made aware of these transactions.
Sunpower not having paid the judgment debt, the ERA subsequently ordered that the company’s debt to Mr Gillette be paid by Mr Green personally, finding Mr Green had aided…

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 Green v Gillette

Details

AGLC: Green v Gillette [2020] NZCA 533
Case: [2020] NZCA 533
Decision Date: 30 October 2020 at 3 pm

CaseChat Overview and Summary

In Green v Gillette, the Court of Appeal of New Zealand considered an application for an extension of time under r 43(2) of the Court of Appeal (Civil) Rules 2005. The appeal was brought by Thomas Patton Green against Nathan Daniel Gillette, who had successfully claimed relief under s 174 of the Companies Act 1993 in the High Court. The central issue was whether the Court of Appeal should grant an extension of time for Mr Green to file the case on appeal and apply for a hearing date. The Court found that Mr Green had not provided a compelling reason for the delay, and the merits of the proposed appeal appeared weak.

Mr Green and Mr Gillette had been involved in a business relationship through Sunpower Ltd, a company formed by Mr Green in 2014. They entered into a shareholders' agreement and an employment agreement in 2016, but their relationship deteriorated, leading to Mr Gillette's dismissal. Mr Gillette sought relief in the Employment Relations Authority, which ruled in his favour. The High Court subsequently held that Mr Green had unfairly prejudiced Mr Gillette under s 174 of the Companies Act, ordering Mr Green to pay Mr Gillette $60,000 for his 49 per cent shareholding in Sunpower. Mr Green had applied for legal aid to fund the appeal but was refused. He made several informal requests for an extension of time to file the case on appeal, which were granted by the Registrar. However, after his appeal to the Legal Aid Tribunal was declined, he made a formal application for an extension of time.

The Court of Appeal considered the application under r 43(2) of the Rules, which implements the philosophy that any party wishing to challenge a determination in the High Court must do so expeditiously or forfeit the right to pursue the appeal. The Court considered the reasons for the delay, the merits of the proposed appeal, and whether it was genuinely arguable. The Court found that Mr Green had not advanced a compelling reason for the delay and that the merits of the appeal appeared weak. Consequently, the Court declined the application for an extension of time, and the appeal was to be treated as abandoned.

Orders