Managh v Morrison (Dandelion Limited) HC Napier CIV-2009-441-000522

[2011] NZHC 1357

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV-2009-441-000522

UNDER  The Companies Act 1993 and Property Law

Act 2007

IN THE MATTER OF     The liquidation of Dandelion Limited

BETWEEN  JOHN FRANCIS MANAGH AS LIQUIDATOR OF DANDELION LIMITED (IN LIQUIDATION) Applicant

AND  CHRISTOPHER WILLIAM MORRISON

& GREGORY MICHAEL MORRISON AS THE TRUSTEES OF THE C W MORRISON FAMILY TRUST

First Defendants

AND  CHRISTOPHER WILLIAM MORRISON

& PETER CLENNELL FENWICKE AS THE TRUSTEES OF THE C W MORRISON 1996 BUSINESS TRUST Second Defendants

Appearances: K P Sullivan for Applicant

M Kelly for Defendants

Judgment:      5 August 2011 at 5:00 PM

JUDGMENT OF COURTNEY J

Solicitors:           Nowland Gordon & Associates, P O Box 70, Wellington 6011

Fax: [phone]

Counsel:             K P Sullivan, P O Box 5817, Wellington 6145

Fax: [phone]
M Kelly, P O Box 5844, Wellesley Street, Auckland

Fax: [phone]

MANAGH V MORRISON HC NAP CIV-2009-441-000522 5 August 2011

[1]      On  11  July  2011  I  delivered  a  decision  in  which  I  determined  that  the assignment of a cause of action by a company (Dandelion Ltd) a year before its liquidation was a voidable transaction for the purposes of s 292 of the Companies Act 1993.  The liquidators had also sought, in the alternative, a declaration under the Property Law Act 2007 that the assignment was a nullity.  Because of the shortness of time available to me and my conclusion in relation to s 292 of the Companies Act

1993, I did not go on to consider that alternative application.

[2]      The defendants have now sought to have me recall my judgment on the ground that I also failed to deal with their cross-application for leave to apply under s

284 for directions.  The defendants wish to appeal my decision and seek to have both matters dealt with in the same judgment.  The liquidator was opposed to the recall of the judgment but indicated that if it was to be recalled, then the issue of costs should also be determined.

[3]      The  time  for  appealing  the  judgment  will  expire  in  a  few  days.    One (attractive) option was to deal with the defendants’ application for leave to apply for directions in a separate judgment but Mr Kelly, for the defendants, resisted this. Both defendants are trusts controlled by Christopher Morrison who is bankrupt and anxious to avoid unnecessary expenditure such as the substantial filing fee which would be required on a separate appeal.

[4]      There is provision for the recall of a judgment under r 11.9 of the High Court Rules.    It  is,  however,  a step  that  is  not  taken  lightly and  usually only in  the circumstances recognised in Horowhenua County v Nash (No 2).[1]     One of those circumstances is where, for some very special reason, justice requires that the judgment be recalled.   I note that in at least one previous case this ground was regarded as a ground of recall where the Judge had failed to deal with an issue raised

at the hearing.[2]

[1] Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633.

[2] Brake v Boote HC Christchurch M286/89, 27 March 1991.

[5]      I an conscious that my decision in this case was given under time constraints and it is unnecessary and unfair for my omission to cause further cost and inconvenience to the parties.

[6]      I therefore make an order recalling the judgment.  A fresh judgment covering the additional issues will be delivered as soon as possible.

P Courtney J