McCulloch v Quinn - [2012] NZHC 2469

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003508 [2012] NZHC 2469

BETWEEN DONALD ASPINALL MCCULLOCH, NOLA EVANS AND PETER GLYN EVANS AS TRUSTEES OF TOTARA TRUST
Plaintiffs

ANDBERNARD PAUL QUINN First Defendant

ANDNGATI AWA ASSET HOLDINGS LIMITED
Second Defendant

ANDALAN PATRICK PETERS Third Defendant

ANDPETERS CAPITAL LIMITED Fourth Defendant

ANDWILLIAM NORMAN BIRNIE Fifth Defendant

ANDSTEPHEN ROBERT NORRIE Sixth Defendant

ANDBIRNIE CAPITAL PROPERTY PARTNERSHIP LIMITED Seventh Defendant

ANDPICASSO NOMINEES LIMITED Eighth Defendant

ANDWILLIAM NORMAN BIRNIE, STEPHEN ROBERT NORRIE AND RICHARD JAMES O'BRYEN HOARE AS
TRUSTEES OF THE PAONEONE SETTLEMENT TRUST NO. 5
Ninth Defendant

ANDBJF PROPERTIES LIMITED Tenth Defendant

MCCULLOCH & ORS V QUINN & ORS HC AK CIV-2011-404-003508 [24 September 2012]

Hearing: 21 September 2012

Appearances: G Turkington and K L J Simcock for Plaintiffs/Applicants
Z Kennedy and M Clark for First, Second, Third and Fourth
Defendants/Respondents
A J B Holmes for Fifth, Sixth, Eighth and Ninth
Defendants/Respondents

Judgment: 24 September 2012

JUDGMENT OF VENNING J
on application for leave to appeal

This judgment was delivered by me on 24 September 2012 at 4.00 p.m., pursuant to Rule 11.5 of the
High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Izard Weston, Wellington
Lee Salmon Long, Auckland
Minter Ellison Rudd Watts, Auckland
Bell Gully, Wellington

Copy to: G L Turkington, Wellington
A J B Holmes

Introduction

[1] This is an application for leave to appeal the judgment of Allan J1 dismissing the plaintiffs’ application for an order requiring the first to fourth defendants to produce for inspection all documents relating to the settlement of the associated derivative proceedings.

[2] It is unnecessary to rehearse the background. It is set out fully in both the earlier judgment of this Court in McCulloch v Quinn2 and the judgment of Allan J.

Allan J’s judgment

[3] Allan J identified the issue for determination before him as follows:

[20] In an affidavit of documents sworn on 12 July 2012, Mr Peters claims litigation privilege on behalf of the first to fourth defendants for certain documents listed in part two to the schedule of the affidavit. In respect of seven documents, dated between 18 January 2011 and 18 February
2011, Mr Peters claims privilege on the basis that they consist of:

...without prejudice email correspondence about the possibility of an agreed resolution of the share sale.

[21] In respect of certain further documents, dated between 25 February
2011 and 9 Mary 2011, litigation privilege is claimed on the ground that the documents consist of:

... without prejudice email correspondence regarding the preparation of the share sale and purchase agreement, and related security and other documentation.

[22] The plaintiffs do not accept the claim to litigation privilege to have been validly made and seek an order directing that the documents concerned be produced for inspection by the plaintiffs. Essentially, the plaintiffs’ argument is that any privilege the communications in question might enjoy under s 57(2) of the Evidence Act 2006 is “trumped” by s 168 of the Act. Mr Turkington argues that the Court…

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 McCulloch v Quinn

Details

AGLC: McCulloch v Quinn [2012] NZHC 2469
Case: [2012] NZHC 2469
Decision Date: 24 September 2012

CaseChat Overview and Summary

In the High Court of New Zealand, the case of McCulloch and Others v Quinn and Others involved the plaintiffs seeking leave to appeal the dismissal of their application for an order requiring the defendants to produce documents related to the settlement of associated derivative proceedings. The plaintiffs argued that the defendants' claim of litigation privilege should be rejected as it was trumped by the court's supervisory role under section 168 of the Companies Act 1993. Allan J dismissed the application, finding that public policy did not require the production of the disputed documents, and that the privilege was properly claimed by the defendants.

The court considered the application for leave to appeal against the principles established in Clear Communications Ltd v Attorney-General, which require a high threshold for granting leave due to the expeditious nature of the Commercial List. The applicants argued that the appeal raised an important question of law and that without access to the documents, they would suffer real detriment. The court examined whether the proposed appeal involved an important question of law or a matter of general or public importance and whether there would be real detriment if leave was not granted. The court concluded that the important question of law did not exist as the Evidence Act 2006 provided for privilege in the circumstances, and the facts of the case did not support an argument that section 67(1) was engaged. The plaintiffs also did not make out a case for real detriment if the privilege was maintained. As a result, the application for leave to appeal was declined, and costs were reserved.

Orders