MB Technology Ltd v Orbis Blockchain Technologies Ltd - [2024] NZHC 3773

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

COMMERCIAL PANEL

CIV-2020-404-1541

[2024] NZHC 3773

BETWEEN
MB TECHNOLOGY LTD

Plaintiff

AND

ORBIS BLOCKCHAIN TECHNOLOGIES LTD

First defendant

DAVID SHU-HAN YU
Second defendant

DANIEL JOHN CROTHERS
Third defendant

Continued overleaf

Hearing: 9 December 2024

Appearances:

J S Cooper KC, M A Corlett KC, B E Marriner and AJA Cameron for plaintiff

M Heard and I K Rollinson for first, fifth and sixth defendants AJB Holmes for second and third defendants

C P Browne for fourth defendant

Date of judgment:

11 December 2024

REASONS FOR JUDGMENT OF JAGOSE J

[Evidence Act 2006, s 67(1)]

This judgment was delivered by me on 11 December 2024 at 3.30pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

MB TECHNOLOGY LTD v ORBIS BLOCKCHAIN TECHNOLOGIES LTD [2024] NZHC 3773 [11 December 2024]

ECOMI TECHNOLOGY PTE LTD
Fourth defendant

DENISE MULLINGS
Fifth defendant

JAHANZAIB KHAN
Sixth defendant

[1] Among other things, my judgment of 2 December 2024 upheld Orbis’ claim to privilege in a communication comprising an email exchange between the parties in December 2020.1 I later granted MB Technology’s 9 December 2024 oral application to disallow privilege in the communication, with reasons to follow. These are those.

Background

[2] For settlement purposes, the email exchange sought and provided particular corporate constitutive documents.2 Section 57 of the Evidence Act 2006 affords privilege to intended confidential communications made in connection with an attempt to settle a dispute. I had emphasised “while the information contained in the communication also thus is privileged, its independent existence (if any) is not”.3

[3] The relevant communication annexed documents which the evidence now suggests were created on dates after MB Technology purported to cancel its agreement to acquire a shareholding in Orbis, but are dated prior and relied on by Orbis in the communication to contend any attempted cancellation came too late.

[4]Section 67(1) of the Evidence Act provides:

A Judge must disallow a claim of privilege conferred by any of sections 54 to 59 and 64 in respect of a communication or information if satisfied there is a prima facie case that the communication was made or received, or the information was compiled or prepared, for a dishonest purpose or to enable or

1      MB Technology Ltd v Orbis Blockchain Technologies Ltd [2024] NZHC 3631 at [2(d)] and [25]-[29].
2      The communication is a discovered document identified in this proceeding as MB.01.00732, being MB Technology’s initiated email of 18 December 2020 and Orbis’ responsive email of 23 December 2020 (the latter including a variety of attachments).
3      MB Technology Ltd v Orbis Blockchain Technologies Ltd, above n 1, at [29].

aid anyone to commit or plan to commit what the person claiming the privilege knew, or reasonably should have known, to be an offence.

Argument

[5]For MB Technology, Jenny Cooper KC contended “there is a prima facie case

… the communication was made for a dishonest purpose” (at…

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 MB Technology Ltd v Orbis Blockchain Technologies Ltd

Details

AGLC: MB Technology Ltd v Orbis Blockchain Technologies Ltd [2024] NZHC 3773
Case: [2024] NZHC 3773
Decision Date: 11 December 2024

CaseChat Overview and Summary

The High Court of New Zealand considered a dispute between MB Technology Ltd and Orbis Blockchain Technologies Ltd regarding a claim of privilege over a communication between the parties. The communication in question was an email exchange dated December 2020, which involved the provision of certain corporate constitutive documents. The court had to decide whether this communication should be protected by privilege under the Evidence Act 2006.

The primary legal issue was whether the communication had been made for a dishonest purpose or to enable or aid in the commission of an offence, which would allow the court to disallow the claim of privilege. The court needed to assess whether the documents provided in the communication were created for a dishonest purpose, potentially to mislead MB Technology regarding the validity of a previous cancellation of an agreement.

The court found that the documents were indeed created with a dishonest purpose, as they were used to argue against the validity of the cancellation of a shareholding agreement. This finding was based on the documents' creation date being after the purported cancellation, yet they were used to support Orbis' position in the communication. Given that the communication was used in the context of settlement negotiations, and the documents were part of the dishonest purpose of the communication, the court disallowed the claim of privilege.

The court concluded that the communication had a dishonest purpose and that the documents attached to it were part of this dishonest purpose. This determination was sufficient to disallow the privilege, and the seriousness of the allegations did not require a different standard of proof. Therefore, the court disallowed the claim of privilege over the communication.

Orders