Price v ASB Bank Limited

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-3385 [2013] NZHC 3352

IN THE MATTER OF       GGF LIMITED (IN LIQUIDATION)

BETWEEN  JOHN ALBERT PRICE Applicant

ANDASB BANK LIMITED Respondent

ANDSTEPHEN MARK LAWRENCE AND CHRISTOPHER CARY McCULLAGH Third Parties

Hearing:                   21 October 2013

Counsel:                  B Gustafson for Applicant

M J Tingey and N F D Moffatt for Respondent
D M Hughes and J M Hanning for Third Parties

Judgment:                13 December 2013

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 13 December 2013 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date......................................

Solicitors:           Lowndes Jordan, Auckland Bell Gully, Auckland Kensington Swan, Auckland

PRICE v ASB BANK LTD [2013] NZHC 3352 [13 December 2013]

[1]      The applicant, John Robert Price, is the liquidator of GGF Limited.  The third parties to this application, Stephen Lawrence and Christopher McCullagh, are the retired liquidators of Olympic Swiss Limited, which was struck off the Companies Register in 2012 upon completion of its liquidation.  The respondent ASB Bank Ltd was Olympic Swiss’s bank and it provided banking services to Mr Lawrence and Mr McCullagh for the purpose of Olympic Swiss’s liquidation.

[2]      In  this  application  Mr  Price  seeks  orders  against  ASB  pursuant  to  the Companies Act 1993 to enforce his request that it produce copies of certain documents that it holds.  ASB declined to produce the documents, necessitating the application.

[3]      The documents Mr Price seeks are said to relate (directly or indirectly) to GGF’s entitlement to payments that various retailers made into Olympic Swiss’s ASB account or its liquidators’ ASB account.  Mr Price’s particular concern is with payments for Swiss watches that GGF supplied to Olympic Swiss on terms that the watches  and  the proceeds  of their  on-sale were subject  to  a  registered  security interest (PMSI) under the Personal Property Securities Act 1999.

[4]      In  broad  terms  ASB’s  position  is  that  subject  to  any  objection  as  to jurisdiction raised by the Mr Lawrence and Mr McCullagh, it will not oppose an order under s 266(2)(b) to produce documents in the first of what are essentially two categories of documents.   However ASB opposes production of documents in the second category on the grounds that:

(a)       it would be oppressive to require it to produce them;

(b)the confidential documents would never have been available to the directors of GGF; and

(c)       there is insufficient explanation for requiring them.

[5]      Mr Lawrence and Mr McCullagh oppose the application in its entirety on grounds that go to jurisdiction and the court’s discretion (including that the application challenges the propriety of their actions in the liquidation of Olympic Swiss).

[6]      The Crown, being the party in whom Olympic Swiss’s property vested on its being struck off, has indicated that it will not take any steps in relation to the application.

[7]      Broadly at  issue is  whether there is  jurisdiction  to  order production  and whether Mr Price has demonstrated a legitimate need for the documents for use in the administration of…