Jackson v Porwal

[2017] NZHC 1514

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2017-404-001330 [2017] NZHC 1514

UNDER

Section 12 of the Receiverships Act 1993

IN THE MATTER OF

Part 19 of the High Court Rules

IN THE MATTER OF AN APPLICATION CONCERNING

YOGURTNMORE LIMITED, SPICE MARKET LIMITED, SNACKNSPICE LIMITED

BETWEEN

NEALE JACKSON AND GRANT GRAHAM

Applicants

AND

ANMOL PORWAL Respondent

Hearing:	(On the papers)
Judgment:	3 July 2017

JUDGMENT OF VENNING J

This judgment was delivered by me on 3 July 2017  at 1.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Buddle Findlay, Auckland

Neilsons Lawyers, Auckland

JACKSON AND GRAHAM v PORWAL [2017] NZHC 1514 [3 July 2017]

[1]      An originating application without notice for orders for preservation and inspection of property has been referred to me as Duty Judge.  I have considered the application together with the affidavit of Mr Lacy and the memorandum of counsel in support.

[2]      I am satisfied that the papers provide a sufficient need for urgency to justify consideration of the application without awaiting any response on behalf of the respondent.  I note that a copy of the papers was contemporaneously served on the solicitors for the respondent.

[3]      The application is brought by Messrs Jackson and Graham in their capacity as receivers of Yogurtnmore Limited, Spice Market Limited and Snaknspice Limited. They were appointed on 30 June 2017.

[4]      When Mr Lacy attended the business premises of Yogurtnmore along with the receivers and other staff the respondent was present.   There was a silver HP laptop upstairs open and running at the time Mr Lacy attended.  The desktop on the laptop was cluttered with numerous folders and icons showing an extensive number of spreadsheets and documents.  The respondent said the material was personal and declined to allow access to it.

[5]      The respondent subsequently permitted the receivers access to another laptop located at a different part of the business premises.  The respondent also advised the receivers that there were two other company computers located at his home but on the way to that address revoked permission for those to be accessed.  Given where the silver HP laptop was located and that it was open during business hours and given the matters that Mr Lacy viewed on his brief observation of it I am satisfied that it is likely to have contained material relevant to the receivership.

[6]      The applicant receivers have a proper claim under s 12 of the Receiverships Act to access the laptops in those circumstances.   The respondent has refused to deliver up that property in the absence of Court orders requiring him to do so.

[7]      I  am  satisfied  that  an  order  for  preservation  of  property is  necessary  to preserve the receivers’ position under the Receiverships Act 1993 in circumstances where there is a risk of the material being destroyed or materially changed. Preservation by forensic copying is all that is sought at present.  The respondent’s position can be preserved by the appropriate arrangements being made for review of the claimed material by an independent person.  The parties should be able to agree on the terms of such orders.

[8]      Accordingly there are orders:

(a)       Granting permission to commence these proceedings by way of an originating application without notice.

(b)Requiring  the  respondent  to  preserve  and  immediately  make  the following material available to the applicants for forensic copying:

(i)the  silver  HP  laptop  computer  (and  all  electronic  material stored thereon) that was located in the storage room of level 2 at 162 Stoddard Road;

(ii)two other computers described as company computers located at 78 Ascot Road, Mangere (and all electronic material stored thereon);

(iii)any other computer hardware, external hard drives, disks, USB devices or any other data storage devices in the possession or control of the respondent, wherever located, that may contain documents and/or information relating to the property in receivership of:

(1)       Yogurtnmore Limited (“Yogurtnmore”);

(2)       Spice Market Limited (“Spice Market”);  and

(3)       Snacknspice Limited (“Snacknspice”),

(together the “Companies”).

(c)      The  applicants  are  to  deliver  the  forensic  copies  referred  to  in paragraph 1(b) into the possession of their solicitor as soon as reasonably possible, without inspecting such material (except to the extent strictly necessary to make the forensic copies);

(d)That leave is reserved to the applicants and the respondent to apply for further orders as to inspection and copying of the above material (including whether, and the extent to which, the material falls within the scope of s 12 of the Receiverships Act 1993).

[9]      Costs reserved.

Venning J