Hickman v Turn and Wave Ltd

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA796/2009
[2011] NZCA 100

BETWEEN  HICKMAN & ORS
Appellant

AND  TURN AND WAVE LIMITED
Respondent

CA797/2009

AND BETWEEN             LESTER & ORS
Appellant

AND  GREENSTONE BARCLAY TRUSTEES LTD
Respondent

CA798/2009

AND BETWEEN             COLLINGWOOD & ORS
Appellant

AND  ICON CENTRAL LTD
Respondent

Hearing:         31 August to 3 September 2010

Court:             O'Regan P, Hammond and Randerson JJ

Counsel:         P J Dale, D W Grove and N R Campbell for Appellants
D J Chisholm and G P Blanchard for Respondent Turn & Wave Ltd
R B Stewart QC and D J Neutze for Respondent Greenstone Barclay Trustees Ltd
B O'Callahan and J Puah for Respondent Icon Central Ltd

Judgment:      29 March 2011 at 11.30 a.m.

JUDGMENT OF THE COURT

AThe application by the appellants to amend the pleadings in each case is dismissed.

B        The appeals relating to the five appellants named at [19] are dismissed.

CCounsel for the remaining appellants are to confer with counsel for the other parties and inform the Court by memorandum within one month from the date of this judgment how the appeals by the other appellants are proposed to be dealt with.

DCosts are reserved.  Counsel are to confer and file a memorandum within the same period on that subject.

REASONS OF THE COURT

(Given by Randerson J)

Para No
Introduction	[1]
The parties	[5]
The proceedings	[8]
The Judge’s findings	[13]
Issues on appeal	[14]
The Blue Chip companies	[23]
The Blue Chip investment products	[30]
The mainstream product	[32]
The joint venture product	[33]
Premium Income Product (PIP)	[40]
Put and Call agreement (PAC)	[49]
The Sale and Purchase Agreements (SPAs) and associated lease documents	[54]
Greenstone	[55]
TWL	[61]
Icon	[64]
The relationship between the developers and Blue Chip	[68]
The Barclay	[70]
The profit share agreement	[73]
The Westpac funding	[77]
The underwrite agreement	[81]
The Bianco	[90]
The Icon	[111]
The underwrite agreement	[117]
The Blue Chip marketing methods	[128]
The extent to which the developers were aware of the Blue Chip investment products and the ability of the purchasers to settle	[134]
Greenstone	[135]
TWL	[144]
Icon	[155]
The scope of the authority of the Blue Chip sales agents to act on behalf of the developers and the issue of imputed knowledge	[161]
The Judge’s findings	[163]
The scope of agency – Greenstone and TWL	[171]
The scope of agency – Icon	[184]
Imputed knowledge	[192]
Imputed knowledge – Greenstone and TWL	[198]
Imputed knowledge – Icon	[206]
Summary on the issue of knowledge by the developers	[209]
The application to amend the pleadings	[210]
Promissory estoppel	[212]
The ability of the investors to settle without Blue Chip’s support	[230]
Implied term	[234]
Interdependent agreements	[255]
The effect of the entire agreement clauses	[265]
Issues under the Securities Act
Introduction	[267]
The purpose and scheme of the Securities Act	[272]
The definitions of “security”, “debt security” and “equity security”	[279]
The Culverden case