IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-3139 [2017] NZHC 1225
IN THE MATTER of an application for particular discovery
before proceeding commenced under Rule
8.20 of the High Court Rules 2009BETWEEN
PETRANZ LIMITED (IN LIQUIDATION) Applicant
AND
BRUCE PETER JAMES SMITH AND AVIEMORE TRUSTEES (2013) LIMITED
Respondents
Hearing: 12 May 2017 Appearances:
N Malarao for the Applicant
J Belthazar for the RespondentsJudgment:
7 June 2017
JUDGMENT OF GORDON J
This judgment was delivered by me
on 7 June 2017 at 12.30 pm, pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Meredith Connell, Auckland
Gibbs Mills Livingston, Highland Park, Auckland
PETRANZ LTD (IN LIQ) v SMITH [2017] NZHC 1225 [7 June 2017]
Introduction
[1] Darrell and Diana Petera are the directors and shareholders of Petranz Ltd (the applicant), which was incorporated on 21 August 2002. On 30 January 2009, the High Court at Auckland placed the applicant into liquidation.1 In 2015, the High Court ordered the Peteras to pay a total of $349,310 to the applicant.2 The Peteras failed to make payment and consequently were adjudicated bankrupt on 28 July
2016. The applicant has submitted a proof of debt in the bankruptcies.3
[2] In addition to the proof of debt filed in the bankruptcies, the applicant considers that it may be appropriate to bring proceedings against the respondents to set aside certain dispositions of property under s 348 of the Property Law Act 2007 (PLA). The applicant believes that the respondents may have been part of a scheme designed to systematically alienate property belonging to the Peteras in order to place that property beyond the reach of creditors. If successful in its proposed claim, the applicant would seek orders requiring the respondents to pay reasonable compensation to the applicant to reflect the value of that property. That money
would be vested in the Official Assignee4 and would be available to pay debts owed
by the Peteras, including debts owed to the applicant.
[3] For the purposes of making its claim the applicant seeks orders for pre- commencement discovery under r 8.20 of the High Court Rules 2016. The respondents oppose the application.
[4] This Court may make an order for pre-commencement disclosure if it appears that:
(a) The applicant is or may be entitled to claim relief against the respondents;
(b)It is impossible or impractical to formulate the claim without the documents sought; and
1 Affidavit of Henry David Levin dated 7 December 2016 at [2].
2 Madsen-Ries v Petera [2015] NZHC 538.
3 Affidavit of Henry David Levin dated 7 December 2016 at [49].
4 Property Law Act 2007, s 350(1)(a).
(c) There are grounds to believe that the documents may be or may have been in the possession of the respondents.
In this judgment I determine each of these three issues so as to decide if pre- commencement discovery should be ordered. I also determine whether costs should be ordered.
Factual background
[5] The factual background to the…
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