Philip Moore & Co Ltd v Surridge

IN THE HIGH COURT OF NEW ZEALAND

WELLINGTON REGISTRY

CIV-2016-485-735

[2018] NZHC 562

IN THE MATTER OF

General Civil Proceedings

BETWEEN

PHILIP MOORE & COMPANY LIMITED

Plaintiff

AND

ANNE JOSEPHINE SURRIDGE

Defendant

Hearing:

6-10 November 2017 (further memoranda filed on 6 and

20 December 2017 and 21 February 2018)

Appearances:

S Iorns for Plaintiff

D Grove for Defendant

Judgment:

28 March 2018

JUDGMENT OF CHURCHMAN J

Pursuant to r 11.5 of the High Court Rules I direct the delivery time of this judgment is

3:30 pm on 28 March 2018

PHILIP MOORE & COMPANY LIMITED v SURRIDGE [2018] NZHC 562 [28 March 2018]

Introduction  [1]

The facts  [3]

Kyle Chemicals Ltd  [6]
Mediation  [19]
Developments after the deed of settlement executed  [30]
Developments regarding Kyle  [39]
6 September 2016 events  [52]
7 September 2016 events  [69]
9 September 2016 events  [82]

The proceedings  [89]

Admissibility of without prejudice communications  [132]
The supplementary agreement  [147]

First cause of action  [161]

Misleading and deceptive  [171]

The Supreme Court test  [180]
Misleading behaviour  [182]

Second cause of action  [191]

Intentional interference with a business by unlawful means  [192]
Interference with a contractual relationship  [202]

Third cause of action  [209]

Was the defendant’s conduct an effective cause of the plaintiff ’s loss?         [214]
The plaintiff’s loss  [217]

The establishment of loss  [221]

Additional evidence of loss  [236]

Exemplary damages  [243]
Third cause of action  [251]

Summary  [269]

Introduction

[1]    By all accounts Wilbur George Surridge (Lofty) was something of a curmudgeon. His children described him as someone who, at times, could be difficult to get along with, as being stubborn, unreceptive to taking advice and having scant regard for rules and regulations. He did not put much store in fully documenting legal transactions even important ones such as the creation of leases or employment agreements. He entered into business relationships on a handshake.

[2]    However, although his business practices were idiosyncratic or unorthodox he managed to build a substantial and successful business manufacturing and distributing cleaning products. This case arises as a result of Lofty’s health deteriorating to the point where he was unable to continue to be actively involved in the business and is essentially a dispute between Lofty’s son Paul and daughter-in-law Marion Pearson

on the one hand and daughter Anne on the other hand as to control of the various business entities forming Lofty’s manufacturing and retailing group.

The facts

[3]    The entity through which Lofty conducted his cleaning products business was a company called Philip Moore & Co Ltd (PMC). This company had originally been incorporated in 1954 with Lofty being appointed a director in 1986. PMC was based in Wellington where Lofty lived.

[4]    Lofty’s business extended throughout New Zealand. In 1997, Lofty incorporated a company called Philip Moore (Auckland) Ltd (PMA) giving his daughter, Anne Surridge (the defendant in these proceedings), a 49 per cent shareholding and retaining the balance himself. In 1999, Philip Moore & Co (S.I.) Ltd (PMSI) was incorporated with Lofty owning 100 per cent…