Keshvara v Blanchett

[2012] NZCA 553

IN THE COURT OF APPEAL OF NEW ZEALAND

CA665/2011
[2012] NZCA 553

BETWEEN  RANJIT KESHVARA
Appellant

AND  DAVID MURRAY BLANCHETT AND GRANT EDWARD BURNS AS LIQUIDATORS OF APG HOLDINGS LIMITED (IN LIQUIDATION)
Respondents

Hearing:         15 November 2012

Court:             Ellen France, Stevens and Asher JJ

Counsel:         L Herzog for Appellant
M D Branch and S J Rawcliffe for Respondent

Judgment:      30 November 2012 at 3.00 pm

JUDGMENT OF THE COURT

AThe appeal is dismissed.

BThe appellant must pay the respondents costs for a standard appeal on a Band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

Introduction  [1]
Background  [5]
High Court judgment  [8]

Evidentiary issues  [8]

Breaches of duty  [12]

Liability under s 194 of the Companies Act  [18]

Relief[19]

First question – admissibility of business records  [20]

Statutory provisions  [26]

Our evaluation – admissibility  [31]

The second question – liability  [38]

Liability issues – High Court judgment  [41]

Submissions on liability  [55]

Our evaluation – liability  [57]

Result  [62]

Introduction

1. This appeal concerns findings in the High Court that the appellant had breached his duties as a director under ss 131, 133 and 137 of the Companies Act 1993.[1]  In relation to those breaches the appellant was ordered to pay the sum of $1,439,084.00 by way of remedy under s 301 of the Companies Act.[2]  The High Court also found that at the relevant times the board of directors of which the appellant was a member was in breach of s 194 of the Companies Act.  In relation to that breach the appellant was ordered to pay $39,876.00 pursuant to s 300.

   [1]Blanchett v Keshvara [2011] NZCCLR 34 (HC).

   [2]Applying the approach of this Court in Mason v Lewis [2006] 3 NZLR 225 (CA) at [109]–[110] and [118].

2. The appellant is a former director of APG Holdings Ltd (APG).  The respondents, Messrs Blanchett and Burns, are the liquidators of that company. 

3. The central question is whether Venning J was correct to admit into evidence certain documents relating to the transactions in question pursuant to the provisions of s 19 of the Evidence Act 2006 dealing with admissibility of hearsay statements contained in business records.  That was the first issue raised in the agreed list of issues.  The second was whether, if all or some of the evidence is not admitted, the findings of the High Court on liability were affected.

4. At the hearing, Mr Herzog, counsel for the appellant, also sought to challenge the Judge’s findings on liability even if all of the challenged documents were ruled to be admissible.  We address this question later in the judgment.

Background

1. The appellant was a director of APG from 11 March 2004 until 23 July 2004.  APG was placed into liquidation on 9 February 2007.  APG was one of the companies in a group known as “Capital Events”.  The Capital Events companies were primarily controlled by Terry Wilson and David Andrew Tauber.  The companies mainly provided hospitality services…