Houghton v Saunders HC Christchurch CIV 2008-409-000348

[2011] NZHC 622

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

civ-2008-409-000348

BETWEEN  ERIC MESERVE HOUGHTON Plaintiff

ANDTIMOTHY ERNEST CORBETT SAUNDERS

SAMUEL JOHN MAGILL JOHN MICHAEL FEENEY

CRAIG EDGEWORTH HORROCKS PETER DAVID HUNTER

PETER THOMAS JOAN WITHERS First Defendants

ANDCREDIT SUISSE PRIVATE EQUITY INC (FORMERLY CREDIT SUISSE FIRST BOSTON PRIVATE EQUITY INC)

Second Defendant

ANDCREDIT SUISSE FIRST BOSTON ASIAN MERCHANT PARTNERS LP Third Defendant

ANDFIRST NEW ZEALAND CAPITAL Fourth Defendant

ANDFORSYTH BARR LIMITED Defendant

Hearing:         8-11 November 2010

2-3 December 2010

Appearances: A J Forbes QC, J R Eichelbaum and P Mills for First Plaintiff

A R Galbraith QC and D Cooper for First Defendants
A Olney and P Douglas for Second and Third Defendants
D H McLellan for Fourth Defendant
A Challis for Fifth Defendant

Judgment:      9 March 2011

INTERIM JUDGMENT OF HON JUSTICE FRENCH

HOUGHTON V SAUNDERS HC CHCH CIV-2008-409-000348 9 March 2011

[1]      At the hearing, counsel for the plaintiff advised that crucial records held by non-parties were at risk of being destroyed after 31 March 2011.

[2]      I   had   hoped   to   deliver   my   judgment   before   the   end   of   February. Unfortunately,  that  has  not  proved  possible  as  a  result  of  the  Christchurch earthquake.

[3]      In view of the delay and the possible consequences of further delay, I have decided the most appropriate course of action is for me to issue an interim judgment now notifying the parties of the key decisions I have reached, with a full reasoned judgment to follow later.

[4]      My key rulings are as follows:

(i)The plaintiff’s application for an order lifting the interim stay is granted subject to the plaintiff or JAFL making provision for security for costs in the sum of $200,000.  The stay remains in place unless and until the security is provided.  The security is for costs up to discovery and inspection, excluding inspection of the documents of the qualifying shareholders (but not excluding inspection of the defendants’ documents or any documents held by non-parties).

(ii)      The representative order is approved.

(iii)Within forty working days, Mr Gavigan is to file and serve an affidavit advising what progress has been made in the negotiations with prospective funders.

(iv)The actual funder will be required to satisfy the Court that it has the means to paythe full costs of the litigation and that the existing rights of qualifying shareholders under the funding agreement with JAFL are not in any way prejudiced as a result

of any arrangements the actual funder may enter into with

JAFL.

(v)The defendants’ applications to strike out the second cause of action are granted.

Solicitors:

Wilson McKay, Auckland

(Counsel: A J Forbes QC, Christchurch; J Eichelbaum, Auckland) Bell Gully, Auckland

Clendons, Auckland

Russell McVeagh, Wellington

Jones Fee, Auckland

(Counsel: D McLellan, Auckland) McElroys, Auckland