Leeds v Richards - [2016] NZHC 3039

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2016-404-140 [2016] NZHC 3039

UNDER the Insolvency (Cross-border) Act 2006

BETWEEN

MICHAEL THOMAS LEEDS AND NICHOLAS STEWART WOOD Applicants

AND

MURRAY RICHARDS First Respondent

STEINDLE WILLIAMS LEGAL LIMITED

Second Respondent

Hearing: 9 December 2016 (by telephone)

Counsel:

S Bisley for Applicants
M Richards, in person, First Respondent
P Davey for Second Respondent
M J Whale, Independent Solicitor

Judgment:

13 December 2016

JUDGMENT (NO. 2) OF HEATH J

This judgment was delivered by me on 13 December 2016 at 4.30pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Buddle Findlay, Auckland Lowndes Associates, Auckland Copy to:
M Richards, First Respondent
P Davey, Auckland, Second Respondent

LEEDS AND WOOD v RICHARDS [2016] NZHC 3039 [13 December 2016]

Introduction

[1] Messrs Leeds and Wood (the trustees) are the trustees of the estate of Mr Murray Richards, who was adjudged bankrupt in England on 3 November 2015. The petitioning creditor was Vivendi SA, a French company that had obtained judgment against Mr Richards in the Chancery Division of the High Court in London in a sum of about £14 million.1

[2] The trustees applied to the County Court at Croydon (the English Court) to issue a Letter of Request (the Request) to seek assistance from this Court. Their purpose is to obtain access to solicitors’ files in New Zealand. The trustees believe information contained in those files may identify assets (that they suspect Mr Richards may have secreted away) that can be realised for the benefit of his creditors. The Request was issued by the English Court, on 16 November 2015.

[3] Having obtained the Request, the trustees applied to this Court to obtain access to the files. They asked this Court to exercise the powers it could have used if Mr Richards had been adjudged bankrupt in New Zealand. Particular reliance was placed on ss 165 and 171 of the Insolvency Act 2006. The documents sought were in the possession of a firm of solicitors in Auckland, Steindle Williams Legal Ltd (the solicitors).

[4] On 23 September 2016,2 for reasons given on 29 September 2016,3 I made orders under s 8 of the Insolvency (Cross-border) Act 2006 (the Cross-border Act) to provide assistance:4

[6] …

(a) I appoint Mr Michael Whale, Barrister and Solicitor of Auckland, as an independent solicitor to review all files held by Steindle Williams Legal Ltd (whether in paper based or electronic form), and any trust account records independent of them, and determine whether they are matters in respect of which the joint trustees may exercise Mr Richards’ powers to waive legal professional privilege.

1      Vivendi SA v Richards [2013] EWHC 3006 (Ch).
2      Leeds v Richards [2016] NZHC 2248.
3      Leeds v Richards (Privilege) [2016] NZHC 2314, [2016] NZAR 1405.
4 Ibid, at para [6].

(b) Mr Whale and Mr Steindle shall confer and Mr Steindle shall arrange for all files and other paper based or electronic documents to be…

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 Leeds v Richards

Details

AGLC: Leeds v Richards [2016] NZHC 3039
Case: [2016] NZHC 3039
Decision Date: 13 December 2016

CaseChat Overview and Summary

The High Court of New Zealand was asked to decide whether certain documents held by a New Zealand law firm should be provided to the trustees of a bankrupt person's estate. The trustees, Messrs Leeds and Wood, were appointed to the estate of Mr Murray Richards, who was adjudged bankrupt in England. They believed that information contained in the documents in question, which were held by Steindle Williams Legal Ltd in Auckland, may identify assets that can be realised for the benefit of Mr Richards' creditors. The trustees applied to the English Court for a Letter of Request, which was issued on 16 November 2015, and subsequently applied to this Court for access to the documents. The key legal issues that the court had to decide were: (a) whether documents in respect of which there were no impediments to the trustees waiving privilege should be made available to the trustees immediately; (b) how to address documents in respect of which there were arguable issues as to privilege; and (c) the continued role of Mr Whale, the independent solicitor appointed by the court. The court decided that documents in respect of which there were no impediments to the trustees waiving privilege should be made available to the trustees on 27 January 2017, unless the order was suspended or discharged by a Letter of Request from the English Court. For documents in respect of which there were arguable issues as to privilege, the court ordered that Steindle Williams Legal Ltd must provide an affidavit indicating the person or persons who they regard as being entitled to waive privilege, and Mr Richards must be provided access to the files and documents in dispute. Mr Richards was summoned to be examined before an Associate Judge on 6 March 2017 to provide evidence on the privilege issues, after which the Associate Judge would rule on questions of privilege and give directions as to the files and documents that shall be provided to the New Zealand based solicitors for the trustees, and when.

Orders