Perpetual Trust Ltd v Financial Markets Authority

IN THE COURT OF APPEAL OF NEW ZEALAND

CA371/2012
[2012] NZCA 298

BETWEEN PERPETUAL TRUST LIMITED
Appellant

AND FINANCIAL MARKETS AUTHORITY
Respondent

AND TRUSTEES EXECUTORS LIMITED
Intervenor

Hearing: 4 July 2012

Court: Glazebrook, Ellen France and Stevens JJ

Counsel: J R Billington QC and S E Fitzgerald for Appellant
H B Rennie QC and B J Moffat for Respondent
C M Stevens and F M Russell for Intervenor

Judgment: 4 July 2012 at 4.45 pm

ORAL JUDGMENT OF THE COURT

ABy consent, we grant the appellant’s application to adduce further evidence.

B We dismiss the appeal, subject to the following.

CThe confidentiality order made by Ellis J on 24 May 2012 is discharged as from midday, Thursday 5 July 2012.
D In the meantime, the confidentiality order made by Ellis J is varied to allow the appellant to release a statement to unit holders immediately if it wishes to do so. The respondent and the intervenor may comment on that statement publicly, again if they wish to do so.
EThe order made by Heath J on 14 June 2012 that the High Court file not be searched, copied or inspected without leave of a Judge of the High Court, remains intact. The order is extended to this Court’s file on this appeal.
FHeath J’s judgment of 26 June 2012 may be published in its entirety on or after midday, Thursday 5 July 2012.
G This Court’s judgment may also be published in its entirety on or after midday, Thursday 5 July 2012.
HThe appellant (personally and not in its capacity as trustee) must pay the respondent and the intervenor costs for a complex appeal on a Band B basis plus usual disbursements. We certify for:
(a)an uplift of 50% in terms of r 53C(1)(b) of the Court of Appeal (Civil) Rules 2005; and

(b) two counsel.

REASONS OF THE COURT

(Given by Glazebrook J)

Reasons to follow.
We comment at this point that Heath J’s decision is an interlocutory decision focused on the issue of confidentiality and that further information may arise in the substantive proceeding and/or in other proceedings that are relevant to the broader matters discussed in his judgment.
We also note that it was conceded before us today by the appellant that it has an obligation immediately to release information to unit holders about the fact of Torchlight loan, the total outstanding compared to the total value of the Fund, together with any relevant history of the transaction. It also accepted that the Financial Markets Authority should be free to make any public comment on the Torchlight issue in accordance with its statutory obligations.

Solicitors:
Russell McVeagh, Wellington for Appellant
Financial Markets Authority, Wellington for Respondent
DLA Phillips Fox, Wellington for Intervenor

CaseChat Overview and Summary

The New Zealand Court of Appeal considered an appeal by Perpetual Trust Limited against a decision of the High Court, with the Financial Markets Authority and Trustees Executors Limited as respondents and intervenor respectively. The central dispute in this case revolved around the disclosure of certain confidential information in the context of financial transactions involving Perpetual Trust and its obligations to its unit holders. The case specifically addressed the orders made by two High Court judges regarding confidentiality and the release of information to unit holders.

The primary legal issue before the Court of Appeal was whether the confidentiality orders imposed by the High Court should be upheld or varied. These orders were concerned with the disclosure of sensitive financial information to the public and unit holders, and the potential impact of such disclosures on financial markets and regulatory obligations. The Court had to determine the balance between the need for confidentiality and the public's right to know about significant financial transactions.

The Court of Appeal, led by Glazebrook J, dismissed the appeal while making several modifications to the earlier orders. The Court discharged the confidentiality order made by Ellis J, effective from midday on 5 July 2012, and allowed Perpetual Trust to release a statement to unit holders if it wished to do so, with the condition that the Financial Markets Authority and Trustees Executors Limited could publicly comment on this statement if they chose to. The Court also maintained the order by Heath J that prohibited the searching, copying, or inspecting of the High Court file without leave, extending this restriction to the Court of Appeal’s file on the appeal. Additionally, the Court ruled that Heath J’s judgment could be published in full from midday on 5 July 2012, with the Court of Appeal’s judgment also set to be published from the same time. The Court further mandated that Perpetual Trust, in its personal capacity, must pay the costs of the appeal on a Band B basis plus usual disbursements, with an additional 50% uplift and costs for two counsel.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established