Jackson v Kerr - [2021] NZHC 1413

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-000812

[2021] NZHC 1413

BETWEEN
NEALE JACKSON

NATALIE GYTHA BURRETT
Applicants

AND

GEORGE CHARLES DESMOND KERR

Respondent

Hearing: 26 May 2021

Appearances:

M Arthur and J Marcetic for the Applicants

G Blanchard QC and S Nicholson for the Respondent

Judgment:

15 June 2021

JUDGMENT OF WALKER J

This judgment was delivered by me on 15 June 2021 at 3 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

NEALE JACKSON v GEORGE CHARLES DESMOND KERR [2021] NZHC 1413 [15 June 2021]

[1] The applicants are the receivers of Pyne Holdings Limited (“PHL”) appointed by BNZ under a General Security Agreement. Mr Kerr, the respondent, is the sole director of PHL.

[2] The receivers seek two categories of documents from Mr Kerr in his capacity as director, said to enable them to undertake their duties as receivers and to protect and realise PHL’s assets:

(a)all books, records, documents and information in PHL’s possession or control, being personal property of PHL over which they have been appointed receivers (“PHL documents”); and

(b)all books, records, documents and information in Mr Kerr’s possession or control relating to the assets of PHL (“PHL Asset documents”). Specific assets are identified in the receivers’ originating application in an inclusive rather than exhaustive manner.

[3] The originating application came before Lang J. Mr Kerr opposed production of the PHL documents. He did not oppose the request to produce PHL Asset documents generally, but refused to provide privileged documents prepared for the purposes of advising on, settlement of, or defence of, claims by BNZ for payment under a Facility Agreement dated 26 November 2008. Partial orders were made by consent in the following terms:1

(a)Mr Kerr was to advise the receivers by 12.00 pm on 14 May 2021 whether:

(i)PHL currently owns, legally or beneficially, any shares in Pyne Gould Corporation; and

(ii)if so, how those shares are held.

1 Jackson v Kerr HC Auckland CIV-2021-404-000812, 12 May 2021 (Minute of Lang J).

(b)Mr Kerr was to provide all of the books, records, documents and information in his possession or control relating to the assets of PHL by
5.00 pm on 18 May 2021, except for documents that are:

(i)confidential and subject to legal professional privilege in favour of PHL; and

(ii)were prepared for the purposes of advising on, settlement of, or defence of, any claims by BNZ for payment including any privileged legal advice given to PHL in relation to communications with BNZ concerning potential settlement in 2019 and 2020.

[4] For the purpose of this application, the documents in sub-paragraph (b) above may conveniently be labelled “documents subject to litigation privilege”.2 The two substantive issues now requiring determination are whether the receivers are entitled under s 12 of the Receiverships Act 1993 to:

(a)the PHL documents (being a broader category of documents) unfettered by considerations of necessity, reasonableness and oppression; and

(b)the PHL Asset documents, notwithstanding…

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 1413
Case: [2021] NZHC 1413
Decision Date: 15 June 2021

CaseChat Overview and Summary

The case of Jackson v Kerr involved a dispute between the receivers of Pyne Holdings Limited (PHL) and George Charles Desmond Kerr, the sole director of PHL. The receivers, appointed by BNZ under a General Security Agreement, sought two categories of documents from Mr Kerr to enable them to undertake their duties as receivers and to protect and realise PHL’s assets. The two substantive issues requiring determination were whether the receivers were entitled to the PHL documents under s 12 of the Receiverships Act 1993, and whether they were entitled to the PHL Asset documents notwithstanding claims of privilege by PHL. The receivers argued that they had an unfettered entitlement to the PHL documents under the Receiverships Act and that legal professional privilege did not shield against the disclosure of privileged documents to the receivers. However, Mr Kerr contended that the production of PHL documents spanning many years was oppressive, unreasonable and unnecessary. The court found that the receivers were entitled to the PHL documents as they had an absolute statutory entitlement to documents relating to the secured property. The court also found that the receivers were entitled to privileged material relating to property in the receivership for the sole purpose of use in their functions of getting in, protecting and realising the assets. The court made orders for Mr Kerr to deliver all books, records, documents and information of PHL to the receivers, including documents created before the date of receivership that were confidential and subject to legal professional privilege. The receivers were also directed not to disclose to BNZ without leave of this Court any documents that were confidential and legally privileged. The receivers were awarded costs.

Orders