Reynolds v Glaister Ennor - [2011] NZCA 641

IN THE COURT OF APPEAL OF NEW ZEALAND

CA524/2011
[2011] NZCA 641

BETWEEN GRANT BRUCE REYNOLDS
Appellant

AND GLAISTER ENNOR
Respondent

Hearing: 29 November 2011

Court: Ellen France, Harrison and Wild JJ

Counsel: S W Greer and B Pamatatau for Appellant
H M McKee for Respondent

Judgment: 13 December 2011 at 10 a.m.

JUDGMENT OF THE COURT

AThe application for leave to admit the appellant’s affidavit of 28 September 2011 is dismissed.
BThe appellant must pay the respondent costs as for a standard application for leave to appeal on a band A basis and usual disbursements.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction

On 1 August 2011 Associate Judge Christiansen dismissed an application by the appellant, Grant Reynolds, for orders that transactions be set aside under s 292 of the Companies Act 1993 and for payment under s 295(a) of the Act.[1] Mr Reynolds has appealed to this Court against that decision. We deal now with his application under r 45 of the Court of Appeal (Civil) Rules 2005 for leave to file further evidence on the appeal.

Background

[1] Reynolds v Glaister Ennor HC Auckland CIV-2011-404-1380, 1 August 2011.

The relevant events date back to 2008 and 2009. The respondent law firm, Glaister Ennor, had rendered invoices to two companies for work done for them. The two companies are Chaffers Properties Ltd (Chaffers) and Warkworth Grange Property Investments Ltd (Warkworth) (together called the Companies). By late November 2009, the respondent’s invoices remained unpaid. The respondent filed liquidation proceedings.
The next event occurred at the end of February 2010. Peter Chamberlain, then the director of a company called Pigeon Bay Barrier Ltd (the Trustee), authorised the respondent to act as solicitor in relation to the sale of a property. The written authorisation also allowed the respondent to retain from the net proceeds of sale (after repayment of monies owing to the bank) sufficient funds to cover the respondent’s fees in relation to the sale and also to retain and pay the outstanding fees owed to the respondent by the Companies. The property in issue was owned by two trusts, the Pigeon Bay Trust and the Barrier Trust. Pigeon Bay Barrier Ltd is the trustee of these two trusts. Robert Vincent, the director of both Chaffers and Warkworth, is a beneficiary of the Pigeon Bay Trust.
The settlement funds from the sale of the trusts’ property were received on 9 March 2010. From there, the outstanding invoices of the respondent were paid. Payments were made by journal entries through the respondent’s trust account. The funds were transferred from the accounts of the Pigeon Bay Trust and the Barrier Trust to the accounts of the Companies. The journal entries show a total of $27,817.16 transferred on 11 and 25 March 2010 to Warkworth to settle the invoices due by it to the respondent.
On 10 March 2010, the respondent withdrew both liquidation applications and in each case supporting creditors were substituted as plaintiffs.
The next step was the appointment,…

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 Reynolds v Glaister Ennor 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: [2011] NZCA 641
Decision Date: 13 December 2011

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Grant Bruce Reynolds against a decision by Associate Judge Christiansen in the High Court, which dismissed an application by Mr Reynolds for orders to set aside transactions under s 292 of the Companies Act 1993 and for payment under s 295(a) of the Act. The appeal is focused on the application by Mr Reynolds to file further evidence on the appeal, specifically an affidavit and three documents, including a GST return and accompanying GST worksheet by Warkworth for the period 1 February to 31 March 2010. The court was required to determine whether the new evidence was fresh, credible, and cogent enough to warrant leave to adduce it.

The Court of Appeal found that the new evidence did not meet the necessary criteria. The GST return was dated 6 May 2010, well before the proceedings were issued in early 2011, meaning it was not fresh as it could have been obtained with reasonable diligence before the trial. Furthermore, the court found that the evidence was not sufficiently cogent as it did not establish who signed the GST return or provide an explanation for the basis on which Warkworth claimed the GST input credit for the payments. The court also noted difficulties in making factual findings without the benefit of findings from the Court below. As a result, the application to adduce the appellant’s affidavit was dismissed.

In summary, the Court of Appeal dismissed the application for leave to file further evidence on the appeal and ordered the appellant to pay the respondent costs as for a standard application for leave to appeal on a band A basis and usual disbursements.

Orders