Monnery v Parsons - [2018] NZHC 3414

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-482

[2018] NZHC 3414

BETWEEN
PAUL MARK MONNERY

First Plaintiff

PAUL MARK MONNERY and JULIE ANN MONNERY

Second Plaintiffs

AND

ANDREW GRAHAM PARSONS

First Defendant

JOHN MURRAY CREIGHTON
Second Defendant

BRUCE GORDON COPELAND
Third Defendant

KURT BREDENBECK

Fourth Defendant

MURRAY CHARLES PARSONS
Fifth Defendant

Continued over

Hearing: 26 November 2018

Appearances:

C Carruthers QC and J Tizard for plaintiffs

P Chisnall and J Haig for first and sixth defendants G Bogiatto for fourth, fifth and ninth defendants

D J Chisholm QC and J Ryan for third, seventh and eighth defendants

Judgment:

19 December 2018

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

MONNERY v PARSONS [2018] NZHC 3414 [19 December 2018]

AND
PUSH DEVELOPMENTS LIMITED

Sixth Defendant

SANDFIELD ASSOCIATES LIMITED
Seventh Defendant

SANDFIELD VENTURES LIMITED
Eighth Defendant

P K B INVESTMENTS LIMITED

Ninth Defendant

Introduction

[1] The first plaintiff, Paul Mark Monnery, and the second plaintiffs, Mr Monnery and Julie Ann Monnery jointly, sue the first to ninth defendants in relation broadly to the failure of a company by the name of Convendium Ltd, which was incorporated in June 2005 and removed from the register in November 2017.1 Since 2006 the company has focussed on developing and marketing technology for operating cashless vending machines. The parties to this proceeding are mostly investors in that failed venture. Another company, Eftpos Vending Ltd, was also involved in the venture as a licensee for the cashless payment system. It was incorporated in December 2013 and placed into liquidation by this Court in April 2018.

[2] Mr and Mrs Monnery jointly were the trustee owners of shares in Convendium and Eftpos Vending. Mr Monnery was the sole director and the person with day-to- day responsibility for the management of the business. The second defendant, John Murray Creighton, an associate of Mr Monnery, also became a trustee shareholder in, and later the director of, Convendium. The sixth defendant, Push Developments Ltd, a provider of cash operated vending machines, also became a shareholder in Convendium and Eftpos Vending. The first defendant, Andrew Graham Parsons, is the shareholder and director of Push Developments. The ninth defendant, P K B Investments Ltd, became a shareholder in Convendium and Eftpos Vending. The fourth defendant, Kurt Bredenbeck, is P K B’s shareholder and director. The fifth

1 It was later restored to the register in November 2018.

defendant, Murray Charles Parsons, is the first defendant’s father. He advanced funds to Eftpos Vending. The third defendant, Bruce Gordon Copeland, is a shareholder and director of the seventh and eight defendants. The seventh defendant, Sandfield Associates Ltd, developed the software for Convendium that is at the heart of this proceeding. The eighth defendant, Sandfield Ventures Ltd, became a shareholder in Convendium.

[3] The plaintiffs’ statement of claim dated 4 July 2018 is not a spare document. It extends to some 20 pages and 90 paragraphs. It traverses Convendium’s history in some detail. I have not found it…

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 Monnery v Parsons

Details

AGLC: Monnery v Parsons [2018] NZHC 3414
Case: [2018] NZHC 3414
Decision Date: 19 December 2018

CaseChat Overview and Summary

The case of Monnery v Parsons, heard in the High Court of New Zealand, involves the first plaintiff, Paul Mark Monnery, and the second plaintiffs, Mr. Monnery and Julie Ann Monnery, suing the first to ninth defendants in relation to the failure of the company Convendium Ltd, which operated in the business of developing and marketing technology for cashless vending machines. The plaintiffs allege that the defendants intentionally caused economic harm by unlawful means and were complicit in a conspiracy to injure the plaintiffs' economic interests. The defendants seek orders for security for costs against the plaintiffs. The court must determine if the threshold test for security of costs is met, if it is just to order security for costs, and the nature of the order to be made.

The court first considers if the threshold test is met and finds that it is, as the plaintiffs acknowledge they are unable to pay the costs if their claims are unsuccessful. The court then examines whether it is just to order security for costs, considering various factors such as the apparent merits of the claim, whether the plaintiff has access to third-party funding, and whether the application for security has been unduly delayed. The court finds that the plaintiffs' claims face significant difficulties but are not entirely without merit. The court also notes that the plaintiffs have not provided evidence of their financial positions and that the case could likely be disposed of within 5-10 days with proper case management and cooperation between parties.

Based on these considerations, the court orders that the plaintiffs provide security for costs in the sum of $25,000 following the core interlocutory stages of the proceeding and a further $25,000 three months prior to the commencement of the trial. The court concludes that this staged order will strike an appropriate balance between the plaintiffs' right of access to justice and the defendants' right to be protected against costs. The costs of this application are reserved.

Orders