Mount v Hannay - [2014] NZCA 600

IN THE COURT OF APPEAL OF NEW ZEALAND

CA39/2014
[2014] NZCA 600

BETWEEN	ANTHONY PAUL MOUNT AND KAYE PAMELA MOUNT First Appellants
INDEPENDENT FINANCIAL CONSULTANTS LIMITED Second Appellant
AND	ELEANOR MARGARETTA HANNAY First Respondent
GORDON RICHARD ROBERTS AND VALERIE DAWN ROBERTS Second Respondents
SARAH JANE WILLIAMS AND GEOFFREY NIGEL RUTHERFURD WILLIAMS Third Respondents
PATRICK JOHN MCENTYRE AND MARY HELEN MCENTYRE Fourth Respondents
THOMAS ROBERT MILLER AND MARGARET GORDON MILLER Fifth Respondents
PAMELA ALISON HALE AND PHILIP RALPH PALMER Sixth Respondents
ISOBEL MARGARET HALE, MARGARET ROWLANDS AND CALDER BOTTING AS TRUSTEES OF THE HALE FAMILY TRUST Seventh Respondent
ROBERT WILLIAM ASHLEY AND ELAINE MARGARET ASHLEY Eighth Respondents
JOSEPH KWAI PING SUE AND PO CHUE SUE Ninth Respondents
CHRISTINE ANGELA HAY Tenth Respondent
MERCIA LAURA HOSKIN Eleventh Respondent
ELIZABETH CLARE OLLIVER Twelfth Respondent
DALE FRANCIS PETERSON AND LARAINE ALEXANDRA PETERSON Thirteenth Respondents
DOUGLAS OPIE MOUNTFORT Fourteenth Respondent
JUDITH MAY SILKE Fifteenth Respondent
BRYAN JAMES PENNEY AND TRACY BRIGITTE PENNEY Sixteenth Respondents
GEOFFREY GILBERT GUDSELL AND KAY LORRAINE GUDSELL Seventeenth Respondents
DOUGLAS GREGORY, VIRGINIA ELIZABETH GREGORY AND TREVOR NELSON CAMERON AS TRUSTEES OF THE D & V E GREGORY FAMILY TRUST Eighteenth Respondents
BEVERLEY PULLAR Nineteenth Respondent
ELAINE FAULKNER HOLLINS Twentieth Respondent

Hearing:	30 September 2014 (further submissions received 31 October 2014)
Court:	French, Venning and Dobson JJ
Counsel:	M P Mount in person for First Appellants No appearance for Second Appellant D J Ballantyne for Respondents
Judgment:	8 December 2014 at 1.00 pm

JUDGMENT OF THE COURT

AThe application for leave to adduce the email evidence is dismissed.
BThe application for leave to adduce the financial records evidence is granted.
CThe appeal in respect of the second appellant is dismissed for want of prosecution.
DThe appeal in respect of the first appellants is allowed to the following extent:
(a)The judgment entered in favour of the sixth respondents is reduced by $2,500.
(b)The judgment entered in favour of the fourth respondents is reduced by $47,387.
(c)The judgment entered in favour of the third respondents is reduced by $4,767.48.

E In all other respects the decision of the High Court is confirmed.

FThe first appellants must pay the respondents costs for a standard appeal on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Table of Contents

Para No

Introduction  [1]
Background  [4]
The High Court  [18]
Grounds of appeal  [25]
Application to adduce email evidence  [28]
The existence of a fiduciary relationship  [35]
The reliability of Mr Anderson’s evidence  [39]
           Source documents  [41]
           Mr Anderson’s methodology  [47]
           Errors alleged in the High Court  [67]
           Additional errors alleged in this Court  [74]
  Hale claim  [82]
  McEntyre claim  [84]
  Williams claim  [89]
  Silke claim  [92]
           Conclusion on alleged errors  [99]
Unfair process  [100]
Did the Judge reverse the onus of proof?  [104]
Outcome  [109]
Non-publication order  [115]

Introduction

Mr and Mrs Mount (the Mounts) are accused of failing to account for monies paid to them by each of the respondents. Associate Judge Matthews granted the respondents summary judgment…

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 Mount v Hannay

Details

AGLC: Mount v Hannay [2014] NZCA 600
Case: [2014] NZCA 600
Decision Date: 8 December 2014 at 1.00 pm

CaseChat Overview and Summary

Mr and Mrs Mount appeal against a decision of Associate Judge Matthews granting summary judgment to 20 respondents against them for breach of fiduciary duty. The respondents had engaged the Mounts as investment advisers and claimed the Mounts had acted dishonestly by, among other things, misappropriating funds and overstating investments. The application for summary judgment rested solely on the evidence of a forensic accountant. The Mounts’ appeal grounds include the claim that the Judge should not have found the existence of a fiduciary relationship at the summary judgment stage, that the forensic accountant’s evidence was flawed and unreliable and that the Judge reversed the onus of proof. The Court dismissed the appeal in almost all respects, finding that the Judge was right to find the existence of a fiduciary relationship, that the forensic accountant’s evidence was reliable and that the Judge did not reverse the onus of proof. However, the Court found that the judgments in favour of three respondents should be reduced by amounts that were errors identified on appeal.

Orders