TIMOTHY ERNEST CORBETT SAUNDERS, SAMUEL JOHN MAGILL, JOHN MICHAEL FEENEY, CRAIG EDGEWORTH HORROCKS, PETER DAVID HUNTER, PETER THOMAS and JOAN WITHERS First Respondents
AND
CREDIT SUISSE PRIVATE EQUITY INCORPORATED Second Respondent
AND
CREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP Third Respondent
Hearing:
15 October 2020
Court:
Brown, Collins and Goddard JJ
Counsel:
C R Carruthers QC and P A B Mills for Appellant D J Cooper, S T Coupe and M C Harris for First Respondents (except for separate representation noted below) T C Weston QC for Mr Magill C L Broad for Mr Horrocks B D Gray QC and A E Ferguson for Ms Withers J B M Smith QC and A S Olney for Second and Third Respondents
CThe appellant must pay one set of costs for a standard appeal on a band A basis to the first respondents, and one set of costs for a standard appeal on a band A basis to the second and third respondents collectively, in each case with usual disbursements. We certify for second counsel in respect of each of the two sets of costs.
Failure to pay security for costs and to prepare for stage two
The May 2020 judgment
Events following the May 2020 judgment
The August 2020 judgment
Claimants’ submissions on appeal
Respondents’ submissions on appeal
Developments after the hearing
Discussion
Challenge to May 2020 judgment
Appeal from August 2020 judgment
Should non-compliance be excused?
Result
REASONS OF THE COURT
(Given by Goddard J)
Introduction and summary
The issues before the Court
In 2008 the appellant, Mr Houghton, brought a claim on behalf of some 3,600 claimants in relation to a prospectus issued in May 2004 for shares in Feltex Carpets Ltd (Feltex). The claim was brought as a funded class action, on an “opt-in” basis.[1]
[1]At stage one of the proceeding, Mr Houghton was the representative plaintiff. Stage two of the proceeding involves claimants other than Mr Houghton, and since the High Court’s stage two interlocutory judgment on 15 August 2019, Mr Houghton and the stage two claimants have been referred to as “the claimants”: Houghton v Saunders [2019] NZHC 2007 [Stage two interlocutory judgment] at [2].
A trial of “stage one” of the claim took place in the High Court in 2014. The claim failed.[2] An appeal to this Court was dismissed in 2016.[3] But in 2018 an appeal to the Supreme Court succeeded in part.[4] The Supreme Court held that the Feltex prospectus contained an…
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.
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Details
AGLC
Houghton v Saunders [2020] NZCA 638
Case
[2020] NZCA 638
Decision Date
CaseChat Overview and Summary
The Court of Appeal dismissed the appeals brought by the appellant, Mr Houghton, against two judgments of the High Court. The first judgment, delivered in May 2020, dismissed Mr Houghton's funded class action claim against various respondents in relation to a prospectus issued in 2004 for shares in Feltex Carpets Ltd. The second judgment, delivered in August 2020, dismissed an application for a stay of the May 2020 judgment pending appeal. The Court of Appeal found that the claimants had not shown that the High Court was wrong to make the unless orders in the May 2020 judgment. The Court found that the claimants had had ample opportunity to comply with the orders but had failed to do so over an extended period. The Court held that the interests of justice required that the claimants be held to the consequences of their non-compliance with the orders made by the High Court. The Court also found that the appeal from the August 2020 judgment was moot.