Jackson v Kerr - [2021] NZHC 3067

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-000812

[2021] NZHC 3067

UNDER Sections 12 & 34 of the Receiverships Act 1993

BETWEEN

NEALE JACKSON and NATALIE GYTHA

BURRETT, insolvency practitioners, as receivers of PYNE HOLDINGS LIMITED (in receivership)

Applicants

AND

GEORGE CHARLES DESMOND KERR

Respondent

Hearing: 12 November 2021

Appearances:

J Marcetic & N D Whittle for the Applicants

G P Blanchard QC & S J Nicolson for the Respondent

Judgment:

12 November 2021

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered by me on 12 November 2021 at 4.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
G Blanchard QC, Auckland Chapman Tripp, Auckland Lowndes Jordan, Auckland

JACKSON v KERR [2021] NZHC 3067 [12 November 2021]

Introduction

[1] The applicants, Mr Jackson and Ms Burrett, are the receivers of Pyne Holdings Ltd (in receivership) (PHL).

[2] The respondent, Mr Kerr, is the sole director of PHL. Mr Kerr is currently resident in the United Kingdom.

[3] Since May 2021, the receivers have been seeking documents and information from Mr Kerr concerning the assets of PHL and its interests in related entities.

[4] Despite Court orders requiring Mr Kerr to provide documents and information and documents, some of which were made by consent, and despite undertakings by Mr Kerr to comply with those orders, Mr Kerr has still not provided all the documents and information ordered by the Court. The receivers say Mr Kerr’s failure to provide the documents is seriously impeding their ability to discharge their responsibilities as receivers.

[5] In this application, the receivers seek further orders requiring Mr Kerr’s compliance with the earlier Court orders. The receivers foreshadow an intention to seek an order against Mr Kerr under the Contempt of Court Act 2019 if he does not comply with the orders now sought. They also seek costs of this application on an indemnity basis.

Background

[6] On 29 April 2021, Mr Jackson and Ms Burrett were appointed receivers of PHL by the Bank of New Zealand Ltd (BNZ) pursuant to a General Security Agreement (GSA).

[7] The receivers say PHL owes BNZ a debt of approximately $67.7 million. They were advised by the BNZ that PHL’s main asset is a significant shareholding in Pyne Gould Corporation Ltd (PGC), a company registered in Guernsey.

PHL’s interests in PGC

[8] The receivers say PHL is the sole shareholder in Australasian Equity Partners GP (No1) Ltd (AEP) and that AEP was at all material times a general partner of Australasian Equity Partners Fund No 1 Ltd Partnership (AEPLP), a New Zealand registered limited partnership. The most recent financial statements for PGC show that, as at 31 December 2020, AEP, as general partner of AEPLP, owned 65.74 per cent of the shares in PGC.

[9] The receivers also say that their investigations show that AEPLP was established by PHL and others for the purpose of taking over PGC and that PHL committed…

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 Kerr

Details

AGLC: Jackson v Kerr [2021] NZHC 3067
Case: [2021] NZHC 3067
Decision Date: 12 November 2021

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application by Neale Jackson and Natalie Gytha Burrett, insolvency practitioners and receivers of Pyne Holdings Limited (in receivership), against George Charles Desmond Kerr, the sole director of Pyne Holdings Limited. The receivers sought further orders to compel Mr Kerr to provide documents and information concerning the assets of Pyne Holdings Limited and its interests in related entities, following his non-compliance with previous court orders. The receivers also sought costs on an indemnity basis.

The legal issues before the court were whether the receivers were entitled to the orders they sought, and if so, whether the orders should be made immediately or if a further period should be given for compliance. The receivers argued that Mr Kerr's persistent failure to provide documents and information, despite being subject to court orders, seriously impeded their ability to discharge their responsibilities as receivers. They sought an order that Mr Kerr comply with the previous court orders and provide the requested documents and information within two working days of the declaration. The receivers also sought an order that Mr Kerr pay their costs on an indemnity basis.

The court found that Mr Kerr had not complied with the previous court orders and that it was appropriate to grant the orders sought by the receivers. The court made a declaration that Mr Kerr had not complied with the previous court orders and ordered him to comply with the orders no later than 5 pm on Tuesday, 16 November 2021. The orders required Mr Kerr to provide the receivers with various documents and information, including financial accounts, tax returns, statutory records, and transaction records, relating to Pyne Holdings Limited and its interests in related entities. The court also ordered Mr Kerr to file and serve an affidavit confirming that he had provided all requested documents and information or explaining why he had not done so. The court set down the proceeding for a telephone conference to ascertain whether Mr Kerr had complied with the orders and, if not, to set down a hearing of the receivers' application for an order under the Contempt of Court Act. The telephone conference would also consider the procedure for determining costs on the receivers' application.

Orders