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Regan v Gill

Regan v Gill

Case [2011] NZCA 607 2 December 2011

Jurisdiction

Consolidation of Proceedings

Discretionary Decision-Making

Procedural Fairness

Civil Litigation & Procedure

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA438/2011
[2011] NZCA 607

BETWEEN ANTHONY JOSEPH REGAN
First Appellant

AND ANTHONY JOSEPH REGAN AND JENNIFER ANNE REGAN AS TRUSTEES OF THE PICCADILLY TRUST
Second Appellant

AND ROBERT GILL
First Respondent

AND PREMIER EVENTS GROUP LIMITED
Second Respondent

AND BA PARTNERS LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION)
Third Respondent

AND DIGITAL PARTNERS LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION)
Fourth Respondent

AND CPG YORK LIMITED
Fifth Respondent

AND BRAND ADVANTAGE MEASUREMENT AND CONSULTING LIMITED
Sixth Respondent

AND DIGITAL PARTNERS (NZ) LIMITED
Seventh Respondent

Hearing: 13 October 2011

Court: Chambers, Ronald Young and Andrews JJ

Counsel: J Eichelbaum for Appellants
G M Sandelin and M D Pascariu for First, Second, Sixth and Seventh Respondents

Judgment: 2 December 2011 at 11.30 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellants must pay to the first, second, fifth, sixth and seventh respondents one set of costs, based on a standard appeal and usual disbursements. The appellants’ liability is joint and several.

REASONS OF THE COURT

(Given by Chambers J)

Consolidation of proceedings

In 2010, Premier Events Group Limited (PEG) commenced a proceeding in the Auckland Registry of the High Court under CIV-2010-404-3178 (CIV2010). The first to seventh defendants of that proceeding are Malcolm Beattie, Anthony Regan, CTNZ Ltd, Parnell Partners Group Ltd, Sports Hospitality Management Ltd, Parnell Partners Group (NZ) Ltd and Cartan Global LLP. There are two other defendants, the eighth and ninth, Cartan Tours Inc (Cartan Tours) and Sportsmark Management Group Ltd (Sportsmark). They are both incorporated in the United States. They have filed protests to jurisdiction which, as we understand it, are still unresolved.
In 2011, Mr Regan and his family trust, the Piccadilly Trust, commenced a proceeding in the same registry under CIV-2011-404-474 (CIV2011). There are seven defendants in his proceeding. They are Robert Gill, PEG, BA Partners Ltd, Digital Partners Ltd, CPG York Ltd, Brand Advantage Measurement and Consulting Ltd and Digital Partners (NZ) Ltd.
At first blush, the parties in the two proceedings would appear dissimilar, but that is something of an illusion. The fact is that PEG’s relationship to the other defendants in CIV2011 is sufficiently close that the same solicitors and counsel act for all of them. Likewise, the first seven defendants in CIV2010 have sufficiently similar interests that the same solicitors and counsel act for them.
In February this year, Mr Regan applied to have the two proceedings consolidated under r 10.12 of the High Court Rules. Wylie J, who has been case managing the two proceedings in the High Court and is the allocated trial judge, declined that application on 24 June this year. He directed, however, that the proceedings should be heard one after the other, with CIV2010 being heard first.[1]
[1] Premier Events Group Ltd v Beattie HC Auckland CIV-2010-404-3178, 24 June 2011.
The Regan interests have appealed against that decision. Essentially their argument is that consolidation will lead to a considerable saving of time.

Issues on the appeal

The first…

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.

Continue reading Regan v Gill

Details

AGLC: Regan v Gill [2011] NZCA 607
Case: [2011] NZCA 607
Decision Date: 2 December 2011

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Anthony Joseph Regan and the Piccadilly Trust, as trustees, appealed against the decision of Wylie J, who declined to consolidate two proceedings in the High Court. The respondents in the consolidated proceeding were Robert Gill, Premier Events Group Limited, and others. The appeal was heard on 13 October 2011, by Chambers, Ronald Young, and Andrews JJ. The court dismissed the appeal, ordering the appellants to pay costs to the first, second, fifth, sixth, and seventh respondents.

The appeal concerned the court's decision not to consolidate two proceedings. The first proceeding was commenced by Premier Events Group Limited against various defendants, including Malcolm Beattie, Anthony Regan, and others. The second proceeding was commenced by Anthony Regan and the Piccadilly Trust against Robert Gill and others, who were closely related to the defendants in the first proceeding. The appellants argued that consolidation would lead to considerable time savings. The central issue for the Court of Appeal was whether it should overturn the Judge's decision not to consolidate the proceedings.

The Court of Appeal found that, even if consolidation would save time, it was not a case where the court should overturn the Judge's decision. The court agreed with the Judge's assessment of the different legal issues in the two proceedings and found that the Judge was in an excellent position to weigh the factors in deciding how best to run the trials. The Court also noted that any decision on consolidation would have to be reviewed if the High Court dismissed the protests to jurisdiction filed by Cartan Tours Inc and Sportsmark Management Group Ltd, which were not parties to the second proceeding. The court ultimately found that the Judge's decision was not one that should be overturned.

Orders