Longevity Developments Limited (in liquidation) v Kilpatrick - [2023] NZHC 963

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002760

[2023] NZHC 963

BETWEEN LONGEVITY DEVELOPMENTS LIMITED (IN LIQUIDATION)
Plaintiffs

AND

ROBERT KILPATRICK

Defendant

CIV-2019-404-000374

BETWEEN

ROBERT KILPATRICK
Plaintiff

AND

ANTHONY RONALD DAMIAN CORIN

Defendant

Hearing: 20 March 2023

Appearances:

A J P Holmes for A Corin Defendant in Person

Judgment:

28 April 2023

JUDGMENT OF ASSOCIATE JUDGE GARDINER

This judgment was delivered by me on 28 April 2023 at 11.30 a.m. pursuant to Rule 11.5 of the High Court Rules.

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

Solicitors:

Ponsonby Law Ltd, Auckland A J B Holmes, Auckland
LONGEVITY DEVELOPMENTS LTD v KILPATRICK [2023] NZHC 963 [28 April 2023]

Introduction

[1] Robert Kilpatrick and Anthony Corin agreed to develop a property at Redoubt Road, Manukau. They entered into a ‘Heads of Agreement’. They intended that Onestop Projects Limited (OPL) (now in liquidation), a construction company owned and controlled by Mr Corin, would build the property’s housing and infrastructure.

[2] Mr Kilpatrick and Mr Corin discussed other development opportunities, including at Kivell Close, Cardigan Street, and Matapan Road. Mr Kilpatrick says that he introduced Mr Corin to the owners of these properties, but discussions with Mr Corin and/or OPL did not progress. Mr Corin claims that these opportunities, and other projects at Pilkington Road and Yates Road were part of the joint venture arrangement between he and Mr Kilpatrick.

[3] After around one year of working together, the relationship between Mr Kilpatrick and Mr Corin broke down.

[4] In this proceeding Mr Kilpatrick claims from Mr Corin repayment of $250,000 he loaned to another of Mr Corin’s companies, Longevity Developments Limited (in liq), a loan which Mr Corin guaranteed. He claims, if there was a joint venture and/or other fiduciary relationship between he and Mr Corin (which he denies), that Mr Corin breached his fiduciary obligations by taking unauthorised drawings, engaging in improper conduct, removing Mr Kilpatrick as shareholder and director of OPL, excluding Mr Kilpatrick from development projects, and failing to account to Mr Kilpatrick for his share of the profits received from those projects. Mr Kilpatrick seeks an account of the profits made by Mr Corin in breach of the alleged joint venture and/or other fiduciary relationship, and compensation for the unauthorised drawings.

[5] Mr Corin counterclaims against Mr Kilpatrick for breach of fiduciary duty by excluding Mr Corin from the projects they were pursuing, including those described above.

[6] A further area of dispute concerns an agreement with an Australian company, Formcraft Pty Ltd, for the exclusive right to distribute its construction products in New Zealand. Mr Corin says he introduced that opportunity to Mr Kilpatrick and his

acquaintance Mr Ede. He says that the three of them formed Formcraft New Zealand Limited which entered into a distribution agreement with Formcraft Pty Ltd under which Formcraft New Zealand was appointed as the sole distributor of the products in New Zealand. Mr Corin claims that after the relationship between he and Mr…

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 Longevity Developments Limited (in liquidation) v Kilpatrick

Details

AGLC: Longevity Developments Limited (in liquidation) v Kilpatrick [2023] NZHC 963
Case: [2023] NZHC 963
Decision Date: 28 April 2023

CaseChat Overview and Summary

The case of Longevity Developments Limited (in liquidation) v Kilpatrick was heard in the High Court of New Zealand, Auckland Registry. The primary dispute is between Robert Kilpatrick and Anthony Corin, who had entered into a joint venture to develop a property at Redoubt Road, Manukau. Their relationship deteriorated, leading to litigation over claims of breach of fiduciary duty and the recovery of a loan.

The court was tasked with deciding several legal issues, primarily revolving around the discovery of documents. Specifically, the court had to determine whether certain documents that Mr. Kilpatrick had not disclosed should have been discovered under the High Court Rules 2016. The court also had to assess claims of confidentiality and privilege made by Mr. Kilpatrick over certain documents. The court had to consider whether these documents were relevant to the issues at hand, if there were grounds to believe that the documents existed, and whether the cost and time of discovery would be proportionate to the value of the information potentially revealed.

In its judgment, the court ruled that Mr. Kilpatrick must discover various categories of documents that he had not previously disclosed. This includes attachments to discovered emails, meeting minutes, documents related to specific projects (Pilkington Road, Yates Road, etc.), written advice from accountants regarding GST input credits, and documents on software systems. The court found that these documents were relevant to the issues in the case and that there were sufficient grounds to believe they existed. Furthermore, the court determined that the potential value of these documents justified the time and cost of discovery. Regarding claims of confidentiality and privilege, the court directed Mr. Kilpatrick to provide copies of the relevant documents for the court to assess, without disclosing them to Mr. Corin. The court also directed Mr. Corin to refine the list of documents he sought from the Buildertrend software to avoid disproportionately burdening Mr. Kilpatrick.

The final orders required Mr. Kilpatrick to file an affidavit of documents detailing the status of the specified documents, produce those in his control for inspection, and list certain documents in the open part of the affidavit. Mr. Corin was directed to refine his list of documents sought from the Buildertrend software. The court awarded costs to Mr. Corin on a scale 2B basis and reasonable disbursements.

Orders