On 16 October 2012 the appellant, Patrick Dean Norris, was the liquidator of four companies: Frost Steel Compactors Ltd, Murchison Buses Ltd, Trafalgar Top Ltd and Astra Enterprises Ltd (the four companies). At 3.58 pm that day a decision of Judge Behrens QC was delivered convicting Mr Norris of theft by a person in a special relationship under s 220 of the Crimes Act 1961.[1] The offending related to the sum of $80,960.51 that Mr Norris had received as the liquidator of Astra Enterprises Ltd. The Judge held that he had fraudulently failed to account for that money.
[1]R v Norris DC Nelson CRI-2011-042-1272, 16 October 2012.
The fact of that conviction meant Mr Norris could no longer act as liquidator by operation of law.[2] The Official Assignee proceeded on the basis that there was a vacancy in the office and on 23 October 2012 exercised his power under s 283(6) of the Companies Act 1993 to appoint two insolvency practitioners as liquidators, the respondents, Mr Bruce Gemmell and Mr Rhys Cain. He did so subject to an order being made that they were not disqualified. Such an order was made on 25 October 2012.
[2]Companies Act 1993, ss 280(1)(k), 382(1)(b) and 283(1).
Four days later, Messrs Gemmell and Cain applied on a without notice basis for a search order against Mr Norris and a company he controlled, Norris Management Services Ltd. The next day, on 30 October 2012, Kós J made the order authorising entry on two premises to secure and preserve evidence relating to the liquidations of the four companies. The search order was executed and documents taken.
Mr Norris then filed an application to set aside the search order and for an order that the material seized be returned. In a judgment delivered on 3 December 2012, Simon France J dismissed the application.[3] Mr Norris appeals that decision.
[3]Gemmell v Norris [2012] NZHC 3339.
It is not necessary to traverse the background facts in detail. They are set out in the decision of Simon France J and other decisions.[4] Mr Norris argued in the High Court that the search order should never have been granted and should be quashed. He submitted that the respondents had not been validly appointed as liquidators, and that the liquidator at the time the search order was made was in fact Jackson Alexander Churchill, an associate of Mr Norris, whom…

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 Norris v Gemmell

Details

AGLC: Norris v Gemmell [2014] NZCA 490
Case: [2014] NZCA 490
Decision Date: 6 October 2014 at 1.00 pm

CaseChat Overview and Summary

The appeal was heard by the Court of Appeal of New Zealand, with French, Winkelmann, and Asher JJ delivering the judgment. Patrick Dean Norris, the liquidator of four companies, sought to set aside a search order that had been made against him and a company he controlled. The respondents, Bruce Donald Gemmell and Rhys James Cain, had been appointed liquidators of the companies following Norris's conviction for theft. Norris argued that the search order was wrongly obtained as there was no vacancy in the office of liquidator when it was made, and that it was obtained in bad faith and on material non-disclosure. The Court found that there was a vacancy in the office of liquidator when Gemmell and Cain were appointed, and that Norris had not validly appointed a successor liquidator prior to his conviction. The Court also found that there was no material non-disclosure, and that the application to adduce further evidence should be dismissed as the evidence was not cogent. The appeal was dismissed and the appellant was ordered to pay the respondents' costs.

Orders