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Monnery v Parsons

Monnery v Parsons

Case [2023] NZHC 1595 26 June 2023

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-482

[2023] NZHC 1595

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 BREDENBECH
Fourth Defendant

MURRAY CHARLES PARSONS
Fifth Defendant

PUSH DEVELOPMENTS LIMITED
Sixth Defendant

SANDFIELD ASSOCIATES LIMITED

Seventh Defendant

SANDFIELD VENTURES LIMITED
Eighth Defendant

P K B INVESTMENTS LIMITED

Ninth Defendant

Hearing: 10 May 2023

Appearances:

C Carruthers KC for Plaintiffs

P Chisnall and J Haig for First and Sixth Defendants

MONNERY v PARSONS [2023] NZHC 1595 [26 June 2023]

D Chisholm KC and J Ryan for Second, Third, Seventh and

Eighth Defendants
G Bogiatto for Fourth, Fifth and Ninth Defendants

Judgment:

26 June 2023

JUDGMENT OF ASSOCIATE JUDGE SKELTON

Introduction

[1] This matter involves applications by all defendants against the plaintiffs for further security for costs and, by the first and sixth defendants, for further discovery.

[2] The case relates to a company by the name of Convendium Ltd (Convendium). The company was incorporated in June 2005 as a vehicle for developing and bringing to market a cashless payment system for vending machines. The second plaintiffs, Mr and Mrs Monnery, in their capacities as the trustees of a family trust, were the promoters and the original shareholders. The first plaintiff, Mr Monnery, was formerly the sole director and manager. In a variety of different circumstances, the defendant groups became shareholders or creditors of the company.

[3] In or about 2015 there was a falling out between Mr Monnery and the defendants after which Mr Monnery had no further involvement in the company. Eventually, Compendium failed altogether. It was struck off the register in November 2017. In November 2018 it was reinstated and liquidators were appointed to wind it up.

[4] Further background to the proceeding is described in previous judgments by Associate Judge Johnston dated 19 December 20181 and 26 October 2021,2 and the judgment of Associate Judge Sussock dated 6 May 2021 in separate but related proceedings.3

1      Monnery v Parsons [2018] NZHC 3414 at [1]–[3].
2      Monnery v Parsons [2021] NZHC 2854 at [3]–[5].
3      Sandfield Associates Ltd v Monnery [2021] NZHC 1003 at [7]–[38].

Context for the present applications

[5] In his judgment dated 19 December 2018, Associate Judge Johnston reached the view that, balancing the respective interests of the parties, justice would be served if he made a “modest, staged order for security for costs.”4 The plaintiffs were ordered to provide security for the defendants’ costs pursuant to r 5.45 of the High Court Rules 2016 as follows:5

(a)$25,000 upon the case being set down for trial;6 and

(b)$25,000 three months prior to the commencement of the trial.

[6] Subsequently, in May 2021, the first and sixth defendants and the third, seventh and eighth defendants made applications seeking orders for further security for costs. These applications were informally supported by the other…

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 [2023] NZHC 1595
Case: [2023] NZHC 1595
Decision Date: 26 June 2023

CaseChat Overview and Summary

This case involves applications by all the defendants against the plaintiffs for further security for costs and, by the first and sixth defendants, for further discovery. The plaintiffs are Mr and Mrs Monnery, who were the promoters and original shareholders of Convendium Ltd, a company that developed a cashless payment system for vending machines. The defendants include various groups that became shareholders or creditors of Convendium. The case has a history of previous judgments and applications for security for costs, and the current applications arise from significant changes in the pleadings and the quantum of the plaintiffs' claims.

The legal issues addressed by the court include the jurisdictional basis for further applications for security for costs, whether the threshold test under rule 5.45 of the High Court Rules 2016 is met, and whether it is just in all the circumstances to make an order for further security for costs. The court found that there had been sufficient change in the character of the proceedings or in the material circumstances to warrant reconsideration of the earlier order for security. The threshold test was met as the plaintiffs had conceded impecuniosity. The court considered various factors for and against making an order for security, including the apparent merits of the plaintiffs' claims, the possibility of third-party funding, and the oppression that might result from denying further security. The court concluded that an order for further security for costs should be made, given the increased complexity of the case, the quantum of the claims, and the protraction of the proceedings. The court fixed the total security at $150,000, to be paid in stages before the trial. The court also ordered the plaintiffs to provide further discovery of their financial records. The costs of the application were reserved.

Orders