PMT 20210 Ltd (In liquidation) v Mark - [2022] NZHC 169

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CIV-2021-406-13

[2022] NZHC 169

UNDER The Companies Act 1993

IN THE MATTER OF

The liquidation of PMT 2010 Limited (in liquidation)

BETWEEN

PMT 20210 LTD (in liquidation) First Plaintiff

MURRAY GEORGE ALLOTT, as liquidator of PMT 2010 LIMITED (IN

LIQUIDATION)
Second Plaintiff

AND

PETER MARK AND JEANETTE PATRICIA MARK

First Defendant

WISHEART MACNAB & PARTNERS TRUSTEE COMPANY LIMITED AND DAVID JOHN PAUL AS TRUSTEES OF THE MARK FAMILY TRUST

Second Defendants

Hearing: 10 November 2021

Appearances:

D A Bleier for the Plaintiff

P A Morten for the Defendants

Judgment:

11 February 2022

JUDGMENT OF GRICE J

(Joinder of plaintiff and amended Statement of Claim)

PMT 20210 LTD v MARK [2022] NZHC 169 [11 February 2022]

Contents

Introduction [1]

Background [8]

Against Mr and Mrs Mark (the first defendants): [18](a)

Against the Mark Family Trust as second defendants: [18](d)

Issues [28]

Joinder of liquidator [28]

Limitation issues [29]

Factual background [30]

Issues [33]

Joinder of liquidator as second plaintiff [33]

First cause of action [41]

Third cause of action [59]

Application to join second plaintiff [77]

Second cause of action [84]

Exercise of discretion [106]

Fourth cause of action [111]

Conclusion [117]

Costs [119]

Next steps [122]

Introduction

[1] PMT 2000 Ltd (in liquidation) (PMT), the original plaintiff, applies to join Mr Allott, as an additional plaintiff. It also seeks leave to file an amended statement of claim now in draft dated 13 August 2021 (ASOC).1 The original claim was filed on 23 April 2021.

[2] The defendants oppose the applications. They have raised limitation issues in relation to the joinder and some of the causes of action in the ASOC.

[3] The plaintiff responds saying those causes of action are not statute-barred because the liquidator only became aware of the matters giving rise to the action in circumstances that amount to late knowledge. This extends the primary limitation period.

[4] In relation to the second cause of action a defence raised is that both the primary and long stop limitation periods have expired. The plaintiff says that under s 50 of the Limitation Act 2010 (the Act) that claim is ancillary to the claims made in the first and/or third causes of action. That effectively extends the limitation defence for the ancillary claim.

[5] The defendants also say that the second and third causes of action are “fresh”, having arisen since the filing of the original claim in April 2021. Therefore, the plaintiff must obtain leave to file the ASOC.

[6] There remain outstanding, but not for consideration here, applications for summary judgment and strike out brought by the defendants.2

[7] I approach the applications in a robust way in accordance with the overall objective of the High Court Rules 2016 to secure the just, speedy and inexpensive determination of the applications.3

1 The ASOC is technically a draft filed for the purposes of this application.
2 PMT (2010) Ltd v Mark

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.

Keep reading for free

Create a free CaseChat account to read PMT 20210 Ltd (In liquidation) v Mark and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 169
Decision Date: 11 February 2022

CaseChat Overview and Summary

The case of PMT 2000 Ltd (In liquidation) v Mark was heard in the High Court of New Zealand. The plaintiff, PMT 2000 Ltd, sought to join the liquidator, Mr Allott, as a second plaintiff and file an amended statement of claim. The defendants opposed the applications, raising limitation issues and arguing that some of the causes of action were "fresh" and required leave to be filed. The court found that the joinder of Mr Allott as a second plaintiff was necessary to bring the claims under the Companies Act 1993 and the Property Law Act 2007. The court also found that the limitation period had not expired for the first, second, and third causes of action due to the late knowledge provisions in the Limitation Act 2010. The second cause of action was deemed an ancillary claim to the first and/or third cause of action, and therefore not subject to the long-stop limitation period. The court granted leave to file the amended statement of claim and ordered that the liquidator be joined as a second plaintiff. The costs of the applications were to be borne by the plaintiff. The matter was to be set down for a further case management conference, and the applications for summary judgment and strike out remained pending.

Orders