Price v ASB Bank Limited

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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…

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Case
[2013] NZHC 3352
Decision Date

CaseChat Overview and Summary

Price v ASB Bank Limited involved the liquidator of GGF Limited seeking an order for the production of certain documents held by ASB Bank Limited, the bank for Olympic Swiss Limited. The key issue was whether the court had jurisdiction to order the production of documents and whether the liquidator had demonstrated a legitimate need for the documents. The court found that the liquidator's initial request under s 261(3) was invalid, but jurisdiction existed under s 266(2)(b) as ASB had knowledge of GGF's affairs. The court considered that the documents sought were of the kind specified in s 266(2)(b) and that the liquidator needed them to reconstitute knowledge of the company's affairs. However, the court exercised its discretion to deny production of ASB's internal documents that were not part of any communication with Olympic Swiss or its liquidators. The court granted the application in part and reserved costs for further determination.

The outcome of this case highlights the balance the court must strike between the liquidator's need for information to investigate the company's affairs and the privacy and confidentiality interests of third parties. The court found that the liquidator's need to reconstitute knowledge of the company's affairs outweighed ASB's concerns in this case, but that the court should exercise its discretion with caution against third parties who are not former officers of the company. The liquidator's need for documents to investigate the company's affairs and the public interest in investigating the company's affairs must trump the interests in privacy and confidentiality.

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