Jackson v Bell Gully - [2021] NZHC 2173

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1044

[2021] NZHC 2173

UNDER section 12 of the Receiverships Act 1993 and the inherent jurisdiction of the High Court

BETWEEN

NEALE JACKSON and NATALIE GYTHA

BURRETT as receivers of PYNE HOLDINGS LIMITED (IN

RECEIVERSHIP)
Applicants

AND

BELL GULLY

Respondent

AND

AUSTRALASIAN EQUITY PARTNERS (GP) NO. 1 LIMITED

First Interested Party

GEORGE CHARLES DESMOND KERR

Second Interested Party

Hearing: 30 July 2021

Counsel:

M D Arthur and N D Whittle for applicants No appearance for respondent (abiding)

G P Blanchard QC and S J Nicholson for interested parties

Judgment:

20 August 2021

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 20 August 2021 at 4pm, pursuant to r 11.5 of the High Court Rules

Solicitors:

Registrar/Deputy Registrar Date:

Chapman Tripp, Auckland for applicants Bell Gully, Auckland for respondent
Lowndes Jordan, Auckland for interested parties

JACKSON v BELL GULLY [2021] NZHC 2173 [20 August 2021]

Introduction [1]

The application [10]

Background facts [12]

The chronology of relevant events [18]

Bell Gully engagement and advice [21]

The formation and registration of the limited partnership, AEP [24]

The takeover offer [29]

Events after 30 March 2012 – the proposed second takeover offer [32]

The receivership enquiries [33]

Bell Gully’s involvement in the transactions and the documents in its possession  [35] The disputed documents  [38]
The applicable principles  [41]
The Category 1 documents dated 14 October 2011 to 30 March 2012  [42]
Mr Kerr’s position  [42]
Decision on the first category of documents  [51]
The Category 2 documents dated 31 March 2012 to 25 April 2012  [58]
The Category 3 documents dated 26 April 2012 and later  [61]
Conclusions  [71]
Orders  [73]
Costs  [74]

Introduction

[1] On 29 April 2021, the applicants Neale Jackson and Natalie Burrett (the receivers) were appointed by Bank of New Zealand (BNZ) as receivers of Pyne Holdings Limited (PHL), formerly called Pyne Family Holdings Limited.

[2] Bell Gully is a law firm which, in and after August 2011, advised and provided legal services to PHL in connection with a takeover offer for the shares in Pyne Gould Corporation (PGC), including about the establishment of a vehicle for the takeover: a limited partnership in which PHL would be a limited partner.

[3] Mr George Kerr is the sole shareholder and now the sole director of PHL. Australasian Equity Partners (GP) No. 1 Limited (AEPGP or the General Partner) is the general partner of the limited partnership that was formed, Australasian Equity Partners Fund No. 1 LP (AEP).

[4]On 15 June 2021, Walker J made orders and issued directions that:1

1 Jackson v Kerr [2021] NZHC 1413 at [61].

(a)Required Mr Kerr to deliver, by electronic or other means, to the receivers within seven days, all books, records, documents and information of PHL or under PHL’s control, being personal property of PHL over which the applicants have been appointed receivers.

(b)Required Mr Kerr to deliver, by electronic or other means,…

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 Jackson v Bell Gully

Details

AGLC: Jackson v Bell Gully [2021] NZHC 2173
Case: [2021] NZHC 2173
Decision Date: 20 August 2021

CaseChat Overview and Summary

In the High Court of New Zealand, the receivers of Pyne Holdings Limited, Neale Jackson and Natalie Burrett, applied for an order that Bell Gully, a law firm, deliver documents to them. Bell Gully was previously the legal adviser to PHL in connection with a takeover offer for Pyne Gould Corporation. Bell Gully, as well as George Kerr and Australasian Equity Partners, opposed the application. Bell Gully claimed that the documents were not the property of PHL and that they were protected by legal professional privilege. The receivers maintained that PHL was a client of Bell Gully at all relevant times. Bell Gully abided the decision of the Court, but the application was opposed by Kerr and Australasian Equity Partners. The Court found that PHL continued to be a client of Bell Gully during the first takeover up to and including the time when the takeover offer closed on 30 March 2012. The Court also found that PHL was a client of Bell Gully in relation to the proposed second takeover offer. The Court ordered Bell Gully to deliver to the receivers all documents and records it holds on PHL’s behalf. The receivers were also granted costs.

Orders