Monnery v Parsons - [2022] NZHC 2401

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2018-485-482

[2022] NZHC 2401

BETWEEN
PAUL MARK MONNERY

First Plaintiff

PAUL MARK MONNERY and JULIE ANN MONNERY

Second Plaintiffs

AND

ANDREW GRAHAM PARSONS

First Defendant

JOHN MURREY CREIGHTON
Second Defendant

continued …

Hearing: 14 September 2022 (by AVL)

Appearances:

C R Carruthers KC and R L Fletcher for the Plaintiffs

P R W Chisnall and J D Haig for the First and Sixth Defendants J P Nolen for Second Defendant

D J Chishom KC and J D Ryan for Third, Seventh and Eighth Defendants

G Bogiatto for Fourth, Fifth and Ninth Defendants

Judgment:

19 September 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

MONNERY v PARSONS [2022] NZHC 2401 [19 September 2022]

AND BRUCE GORDON COPELAND
Third Defendant

AND KURT BREDENBECK
Fourth Defendant

AND MURRAY CHARLES PARSONS
Fifth Defendant

AND PUSH DEVELOPMENTS LIMITED
Sixth Defendant

AND SANDFIELD ASSOCIATES LIMITED
Seventh Defendant

AND SANDFIELD VENTURES LIMITED
Eighth Defendant

AND P K B INVESTMENTS LIMITED
Ninth Defendant

A shareholder dispute leads to the failure of their company

[1] Mr and Mrs Monnery were two of the original shareholders of Convendium Limited (Convendium) with Mr Monnery, between March and December 2006, becoming its sole director and manager.

[2] Convendium developed and marketed technology for operating cashless vending machines. The defendants in one form or another invested in Convendium. There was a falling out between the plaintiffs (the Monnerys) and the defendants, as a result of which Mr Monnery had no further involvement with Convendium and it failed.

[3] The Monnerys said the defendants individually or in one combination or another, took Convendium’s intellectual property in connection with the cashless payment system and used it for their own advantage. Convendium is in liquidation and has taken no part in this proceeding.

The Monnerys issue proceedings

[4] The Monnerys’ original statement of claim pleads economic torts against the defendants. The first cause of action is causing loss by unlawful means and the second, as an alternative cause of action, is conspiracy to injure economic interests.

[5] The Monnerys applied for discovery against the defendants seeking a number of documents including those relating to the defendants use of Convendium’s technology and financial records showing the income from those operations. The discovery application was dismissed by Associate Judge Johnston in a decision released on 26 October 2021.1 On 11 February 2022, Associate Judge Johnston fixed costs in respect of that application.2

The present applications

[6]On 10 March 2022, the Monnerys applied for the following orders:

(1)an order recalling the judgment of 26 October 2021 or in the alternative extending time and granting leave to the plaintiffs to appeal against that judgment; and

(2)granting leave to the plaintiffs to appeal against the costs judgment and staying execution of the costs award pending determination of the application for leave to appeal.

What the Monnerys say the Judge got wrong

[7] Mr Carruthers KC, counsel for the Monnerys, submitted Associate…

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 [2022] NZHC 2401
Case: [2022] NZHC 2401
Decision Date: 19 September 2022

CaseChat Overview and Summary

In Monnery v Parsons, the plaintiffs, Mr. and Mrs. Monnery, were original shareholders of Convendium Limited, a company that developed and marketed technology for operating cashless vending machines. The defendants, in various capacities, had invested in Convendium. A dispute arose between the parties, leading to Mr. Monnery's departure from Convendium and its subsequent failure. The Monnerys alleged that the defendants had taken Convendium's intellectual property for their own benefit. Convendium is in liquidation and did not participate in the proceedings.

The Monnerys sought leave to appeal the dismissal of their discovery application and the associated costs judgment. The original statement of claim pleaded economic torts against the defendants, namely causing loss by unlawful means and conspiracy to injure economic interests. The Monnerys argued that the defendants' use of Convendium's intellectual property for their own benefit constituted unlawful means and conspiracy. They sought documents related to the defendants' use of Convendium's technology and financial records showing income from those operations.

Associate Judge Johnston dismissed the discovery application and later fixed costs in respect of that application. The Monnerys argued that the Judge misunderstood their causes of action and the relevance of the documents sought. They contended that their claim did not require them to have an interest in Convendium's intellectual property and that their economic interest in Convendium was sufficient to establish their claims.

The Court held that there was no misunderstanding by the Associate Judge of the case before him. The Judge had decided the discovery application on the basis that the documents sought could not be relevant to the type of damages the Monnerys could claim. The Court found that the Monnerys could not quantify their own loss based on loss suffered by Convendium, nor was there any other explanation as to how the documents sought were relevant to the Monnerys' claim.

The Court also dismissed the application for leave to appeal the costs judgment, finding that the Monnerys had not identified an arguable error of fact or law warranting an appeal. The Court confirmed the award of costs and disbursements in favour of the Sandfield defendants and found that the total level of costs for a half-day hearing was high but a consequence of the Monnerys' decision to issue proceedings against nine defendants who were represented as four groups by separate counsel.

The Monnerys' applications were dismissed, and the Court ordered that costs should follow the event. The defendants' counsel were given an opportunity to be heard on the issue of increased costs, with costs memoranda to be filed within five working days of the date of the Judgment. If no costs submissions were filed by any party within that time, each group of defendants was entitled to costs on a 2B basis.

Orders