Katoria Trustee Limited v Toon - [2022] NZHC 3037

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-000697

[2022] NZHC 3037

UNDER the Companies Act 1993

BETWEEN

KATORIA TRUSTEE LIMITED (as trustee of the CA QUINN TRUST)

Applicant

AND

VICTORIA TOON

First Respondent

BRUCE JAMES THOMPSON
Second Respondent

CAROLINE MARY THOMPSON and STEWARTCO TRUSTEE SERVICES

LIMITED as trustees of the CM Thompson Trust

Third Respondent

PAMELA ISABEL QUINN

Fourth Respondent

Hearing: 18 October 2022

Appearances:

S P Bryers for the Applicant

J Alexander for the First Respondent

Judgment:

22 November 2022

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 22 November 2022 at 12.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

KATORIA TRUSTEE LTD v TOON [2022] NZHC 3037 [22 November 2022]

Introduction

[1] The applicant applies for an order for inspection of legal advice the first respondent, Victoria Toon (the Liquidator), obtained in her role as liquidator of Investacorp Holdings Limited (in liquidation). Alternatively, the applicant applies for a direction requiring the Liquidator to provide a copy of the legal advice. It says it wants to see the advice to determine whether to make a claim against the author for providing erroneous legal advice resulting in loss to Investacorp and its shareholders.

[2] The Liquidator opposes the application. She says that there is no good reason for the applicant to inspect the legal advice, and furthermore it is protected by legal advice privilege.

[3]The application raises three main issues:

(a)Who owns the privilege in the legal advice?

(b)Has the privilege been waived?

(c)Does the applicant have a good reason for inspecting the advice?

[4] As a preliminary point, I record that the application was originally brought by Clive Anthony Quinn and Philip Samson Wells as trustees of the CA Quinn Trust (a shareholder of Investacorp associated with Mr Quinn and his wife, Pamela Quinn). Mr Quinn and Mr Wells have subsequently resigned as trustees and have been replaced by Katoria Trustee Limited (Katoria) as trustee. The directors of that company are Mr and Mrs Quinn. An order is sought pursuant to r 4.52 of the High Court Rules 2016 substituting Katoria as applicant for Messrs Quinn and Wells. The Liquidator does not oppose that application provided Mr Quinn confirms he is still liable for costs. Mr and Mrs Quinn agree to ensure that Katoria pays any costs award made against it. On that basis, I order that Katoria Trustee Limited is substituted as applicant in this proceeding.

Background

[5] The background to this application is found in the judgment of the Court of Appeal concerning an application under ss 286 and 284 of the Companies Act 1993 for a declaration that the Liquidator breached her professional duties to Investacorp; and the Liquidator’s application for approval of her remuneration under ss 276(2) and 284(1)(e) of the Companies Act.1

[6] The proceedings arose out of the liquidation of Investacorp. At the time of the liquidation, the shareholders…

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.

Keep reading for free

Create a free CaseChat account to read Katoria Trustee Limited v Toon and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 3037
Decision Date: 22 November 2022

CaseChat Overview and Summary

Katoria Trustee Limited applied for an order for inspection of legal advice obtained by the Liquidator in her role as liquidator of Investacorp Holdings Limited, or alternatively for a direction requiring the Liquidator to provide a copy of the legal advice. The Liquidator opposed the application. The application raised three main issues: who owns the privilege in the legal advice; whether the privilege had been waived; and whether the applicant had a good reason for inspecting the advice. The Court concluded that the privilege in the legal advice was held by the Liquidator in her capacity as liquidator of Investacorp. The Court also concluded that the privilege had not been waived. The Court found that the applicant had not established a good reason for inspection of the legal advice. The Court dismissed the application.

Orders