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O'Brien v Parkinson

O'Brien v Parkinson

Case [2021] NZHC 1193 27 May 2021

Jurisdiction

Unconscionable Conduct

Breach of Fiduciary Duty

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002814

[2021] NZHC 1193

UNDER The Companies Act 1993

BETWEEN

LOUISA JANE O’BRIEN, on behalf of GENERAL DYNAMICS CORPORATION LIMITED

First Plaintiff

LOUISA JANE O’BRIEN
Second Plaintiff

AND

KEVIN PARKINSON

First Defendant

KEVIN PARKINSON, as trustee of KEVIN PARKINSON FAMILY TRUST
Second Defendant

ANNA VALERIENA KEDRINSKAIA and LISTON TRUSTEE SERVICES LIMITED,
as trustees of ANNA KEDRINSKAIA TRUST

Third Defendants

Hearing: 21 April 2021

Appearances:

J McCartney for Plaintiffs (CIV-2019-404-002814) and Defendants (CIV-2020-404-002351)

S Morris and S Dodds for Defendants (CIV-2019-404-002814) S Jefferson QC for Plaintiffs (CIV-2020-404-002351)

Judgment:

27 May 2021

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

O’BRIEN v PARKINSON & ORS [2021] NZHC 1193 [27 May 2021]

CIV-2020-404-002351

UNDER The Property (Relationships) Act 1976

BETWEEN KEVIN JAMES PARKINSON

Plaintiff

AND LOUISA JANE O’BRIEN
First Defendant
GENERAL DYNAMICS LIMITED
Second Defendant
KEA GNSS LIMITED
Third Defendant
KEVIN JAMES PARKINSON, as trustee of the KEVIN PARKINSON FAMILY
TRUST
Fourth Defendant
LOUISA JANE O’BRIEN, as trustee of the LOUISA PARKINSON FAMILY
TRUST
Fifth Defendant
ANNA VALERIENA KEDRINSKAIA and LISTON TRUSTEE SERVICES
LIMITED, as trustees of ANNA KEDRINSKAIA TRUST
Sixth Defendants

This judgment was delivered by Associate Judge Andrew on 27 May 2021 at 9.30 am
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date……………………….

Introduction

[1] These are relationship property and shareholder derivative proceedings under s 165 of the Companies Act 1993. They arise out of the dissolution of the marriage between Ms O’Brien and Mr Parkinson following a relationship of 29 years.

[2] Ms O’Brien claims that following their separation in 2013, Mr Parkinson caused General Dynamics Corporation Ltd (GDC) – owned by the respective family trusts – to cease trading. She says that he then incorporated another company just one month later, which took over the business and trading of GDC.

[3] Ms O’Brien contends that Mr Parkinson’s actions in transferring the property of GDC and its profits to interests associated with him was in breach of his fiduciary duty. She claims a resulting trust in relation to a property in Heuchan Lane, Wanaka that is owned by the third defendant trustees. One of those trustees, Ms Anna Kedrinskaia, is the de facto partner of Mr Parkinson. Ms O’Brien also seeks orders under s 44 of the Property (Relationships) Act 1976 setting aside the disposition of the Wanaka property to the trustees and other dispositions relating to GDC.

[4]There are five interlocutory applications for determination:

CIV-2020-404-2351 (Property (Relationships) Act (PRA) proceeding):

(a)Joinder of Anna Kedrinskaia and Liston Trustee Services Ltd;

(b)Strike out/costs for non-compliance with discovery orders;

(c)Application by Mr Parkinson to strike out Ms O’Brien’s application to strike out (ie a cross-strike out claim);

CIV-2019-404-2814 (Companies Act proceeding):

(d)Further and better discovery from the first-third defendants; and

(e)Non-party discovery.

Factual background

[5] A comprehensive factual background is set out in my judgment of 14 July 2020, granting leave to Ms O’Brien to bring the s…

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 O'Brien v Parkinson

Details

AGLC: O'Brien v Parkinson [2021] NZHC 1193
Case: [2021] NZHC 1193
Decision Date: 27 May 2021

CaseChat Overview and Summary

The High Court of New Zealand heard a number of interlocutory applications in the case of O'Brien v Parkinson. Ms Louisa O'Brien filed a shareholder derivative action on behalf of General Dynamics Corporation Limited (GDC) and a proceeding under the Property (Relationships) Act 1976 (PRA) against Mr Kevin Parkinson, his family trusts, and others. Ms O'Brien sought joinder of additional defendants, discovery orders, and non-party discovery. Mr Parkinson opposed these applications. The court granted Ms O'Brien's applications for joinder, discovery, and non-party discovery. The court also ordered Mr Parkinson to pay the costs of the non-party discovery and to file consolidated affidavits of documents. The court further ordered the parties to file amended pleadings and provided case management directions to ensure that the trial remained on track. Finally, the court ordered that if Mr Parkinson failed to comply with the orders made in the judgment, then his PRA proceedings would be struck out and he would be debarred from defending the Companies Act proceedings.

Orders