Premier Events Group Ltd v Beattie HC Auckland CIV 2010-404-3178

[2010] NZHC 1198

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-3178

BETWEEN  PREMIER EVENTS GROUP LTD Plaintiff

ANDMALCOLM JAMES BEATTIE First Defendant

ANDANTHONY JOSEPH REGAN Second Defendant

ANDCARTAN GLOBAL LIMITED Third Defendant

ANDPARNELL PARTNERS GROUP LTD Fourth Defendant

Hearing:         14 July 2010

Counsel:         Z Kennedy for Plaintiffs

J Eichelbaum for Defendants

Judgment:      14 July 2010

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Minter Ellison Rudd Watts, PO Box 3798, Auckland
Franklin Law, PO Box 43, Pukekohe
Counsel:

J Eichelbaum, PO Box 147180, Ponsonby, Auckland

PREMIER EVENTS GROUP LTD V BEATTIE AND ORS HC AK CIV 2010-404-3178  14 July 2010

[1]      In this proceeding, Premier Events Group Ltd sues ex directors and their corporate interests for breach of fiduciary obligations, misuse of confidential information and conspiracy to injure the plaintiff’s business by unlawful means.

[2]      On 27 May 2010, a search order was made by this Court.  That order was executed on 28 May 2010.   Some 150,000 pages of documents and 17 forensic clones of computers were obtained under the Court order.

[3]      Following a hearing before Asher J on 10 June 2010, the Court determined that an application by the plaintiff that material seized under the search order should be disclosed to it should be resolved before an application by the defendants to set aside the search order.  The former was heard by Stevens J and, in a judgment given on 21 June 2010, the Judge ruled in favour of the plaintiff on that issue.

[4]      The plaintiff had  signalled an intention to apply for interim relief.   The defendants’ application to vary or discharge the search order remains extant.   The proceeding was listed before me today, at the direction of Stevens J, for further timetabling orders to be made.

[5]      No application for interim relief has yet been made.  However, Mr Kennedy, for the plaintiff, assures the Court that the application and affidavits in support will be filed on or before 16 July 2010.  On that basis, I consider that the application for discharge of the search order and the intended application for an interim injunction should proceed along parallel lines with a joint hearing to take place at the end of the process.

[6]      However, the orders I will make are contingent on the injunction application and affidavits in support being filed and served on or before 16 July 2010.  If that were not to happen, the remaining timetabling orders in respect of the injunction application will automatically be discharged and only the application to set aside the search order will proceed to hearing at that stage.

[7]       On the proposed injunction application, Mr Eichelbaum, for the defendants, has submitted that specific discovery is required.  He submits that all documentary evidence relating to the quantum of management fees withdrawn from the plaintiff company in the financial years ended 2004 to 2010 and all documentary evidence relating to the plaintiff’s knowledge of the defendants’ competing business in 2010 should be disclosed.

[8]      Mr Kennedy has indicated certain difficulties in providing discovery.  They are practical in nature and relate to the quantity of documents which may be relevant. That quantity is indicated by the volume of documents obtained from the search order.   However, he considers that financial statements can be supplied relatively quickly and acknowledges that the narrative of knowledge, on the part of officers of the plaintiff, in respect of the defendants’ competing business interests will need to be set out fully in an affidavit in support of the interim injunction application.

[9]      On that basis, I propose to direct that a verified list of documents be filed and served  with  regard  to  the  financial  statements  only.    I  will  reserve  leave  for Mr Eichelbaum to apply for an order for specific discovery, in the event that the narrative of the affidavits in support of the interim injunction application do not deal adequately with the issues which are presently concerning him.

[10]     I add that I have not inquired fully into the substance of those issues.  I have also indicated that, on the basis that a specific discovery application is unlikely to take more than one hour to determine, time should be available within the confines of the intended timetable to deal with any application of that type promptly.

[11]     I make the following orders:

a)        First in respect of the injunction application:

i)The application for interim injunction and any affidavits in support shall be filed and served by 5pm on 16 July 2010.

ii)Any affidavits in opposition to the application for interim injunction shall be filed and served by 5pm on 6 August 2010.

iii)      Any affidavits in reply shall be filed and served by 5pm on 27

August 2010.

iv)Submissions from the plaintiff in support of the application shall be filed and served within 14 days of the allocated hearing.

v)Submissions in opposition shall be filed and served within 7 days of the allocated hearing.

b)        Second, in relation to the discharge application:

i)        Any further affidavits in support shall be filed and served by

5pm on 6 August 2010.

ii)Any affidavits in opposition shall be filed and served by 5pm on 20 August 2010.

iii)      Any affidavits in reply shall be filed and served by 5pm on 27

August 2010.

iv)The  defendants  submissions  in  support  shall  be  filed  and served within 14 days of the allocated hearing date.

v)Submissions in opposition to the application shall be filed and served within 7 days of the allocated hearing date.

[12]     Leave is reserved for an application to be made by the defendants for specific discovery in respect of the matters to which I have previously referred.[1]    Any such application shall be filed and served on or before 30 July 2010.   Should such an

application  be  made,  an  urgent  telephone  conference  shall  be  convened  by  the

Registrar to ensure it is determined promptly.

[1] See para [9] above.

[13]     I direct, in relation to the injunction proceeding, that a verified of documents be filed and served on or before 23 July 2010 in relation to financial accounts of the plaintiff in the possession or control of that company, for the financial years ended

2004 to 2010.  The affidavit may qualify, to the extent necessary, the ability of the deponent to access the documents in issue.   The documents discovered shall be produced and made available to the defendants contemporaneously with the affidavit verifying the discovery.

[14]     The Registrar is directed to set the two applications down for hearing jointly on the first available date after 20 September 2010.  Two days should be allocated for the hearing.  While it may take less time than that, it would be prudent to provide for some judgment writing time immediately after the hearing.

[15]     Because the two applications will be dealt with together, counsel shall liaise and file a common bundle of all documents to which reference will be made at the hearing, no later than three working days before the date of the allocated hearing.

[16]     All questions of costs are reserved.

P R Heath J