Nellies v Mark - [2024] NZHC 1912

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2018-406-10

[2024] NZHC 1912

BETWEEN IAIN ANDREW NELLIES as liquidator of PMT 2010 LIMITED (in liquidation)
Plaintiff

AND

PETER MARK and JEANETTE PATRICIA MARK

Defendants

CIV-2021-406-13

BETWEEN

PMT 2010 LIMITED (in liquidation) First Plaintiff

IAIN ANDREW NELLIES as liquidator of PMT 2010 Limited (in liquidation)
Second Plaintiff

AND

PETER MARK and JEANETTE PATRICIA MARK

First Defendants

WISHEART MACNAB & PARTNERS TRUSTEE COMPANY LIMITED and

DAVID JOHN PAUL as trustees of the Mark Family Trust

Second Defendants

Hearing: Teleconference on 10 July 2024 at 3 pm

Counsel:

T J Shiels KC and D P MacKenzie for Plaintiffs P A Morten for Defendants

Judgment:

11 July 2024

JUDGMENT OF RADICH J

NELLIES v MARK [2024] NZHC 1912 [11 July 2024]

[1] The defendants in both of these proceedings have applied to adjourn their trial which is set down to begin in just over two weeks, on 20 July 2024. The application is opposed by the plaintiffs.

[2] At the end of the hearing of the application yesterday, I said that I had decided that the application was declined. These are my reasons for that decision.

Background

[3] PMT 2010 Ltd was a flooring business. Peter Mark and Jeanette Mark were its directors.

[4] In March 2015, a liquidator was appointed over the business on the application of judgment creditors. The 2018 proceeding relates to alleged dealings on the part of Mr and Mrs Mark with funds they received from the earlier sale of the business. It is claimed that distributions were made and assets transferred when PMT was not solvent. Relief, amounting to approximately $600,000, is sought under ss 300, 56 and 297 of the Companies Act 1993.

[5] The proceeding was set down for a trial in July 2020 but was adjourned until May 2021. Based upon information received by the liquidator in June 2020, the company in liquidation brought the 2021 proceeding, alleging that the assignment to the Marks of a vendor finance loan on the sale of the business was invalid or was a disposition that defeated creditors. Relief exceeding $2.7 million is sought.

[6] The scheduled trial of the proceeding was adjourned when the two proceedings were consolidated. A new trial date of 20 September 2021 was given. It was vacated in the wake of a range of interlocutory applications: a strike-out application and a defendants’ summary judgment application, a joinder application by the plaintiff and a Limitation Act application. The joinder was allowed, a finding was made that the claims were not statute-barred and the other applications did not proceed at that time.1

1 PMT 2010 Ltd & Anor v Mark & Ors [2022] NZHC 169.

[7] Subsequently, a hearing that had been set down for 24 August 2022 was vacated following a joint application.

[8] Further interlocutory applications followed in February and March 2023 – for further discovery by the defendants and to file an amended pleading…

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 Nellies v Mark

Details

AGLC: Nellies v Mark [2024] NZHC 1912
Case: [2024] NZHC 1912
Decision Date: 11 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, the defendants, Peter Mark and Jeanette Patricia Mark, applied to adjourn the trial set for 20 July 2024. The plaintiffs, Iain Andrew Nellies as liquidator of PMT 2010 Limited (in liquidation) and PMT 2010 Limited, opposed the application. The central issue was whether the application should be granted under the broad discretion provided by rule 10.2 of the High Court Rules 2016, considering factors such as the interests of justice, the balancing of prejudice between the parties, and the right to a fair trial. The defendants argued that they needed more time to conduct a forensic search of the former accountant's server to ascertain the creation dates of crucial documents, which could affect the trial's outcome. They also claimed that the search might reveal information relevant to a limitation defence. The plaintiffs contended that they had fulfilled the orders of the court, providing the necessary documents, and that further delay would unfairly prejudice them.

Radich J declined the application, reasoning that the plaintiffs had substantially complied with the court's orders, and the documents provided were sufficient for a fair trial. The court emphasised that the defendants had ample time to prepare their case and that any further information could be brought before the trial judge if discovered. The court also noted that the proceeding had been pending for a long time, and delaying it further would not serve the interests of justice. The right of the parties to a fair trial was deemed to be preserved, and the importance of resolving the proceedings outweighed the reasons for adjournment. The court directed the parties to agree on an adjusted timetable for trial and, if necessary, to file separate memoranda and arrange a teleconference to resolve any remaining issues. The application to adjourn was declined, and costs were reserved for determination after the trial.

Orders