Rodgers v Advanced Creative Technologies Limited - [2013] NZHC 1095

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-005863 [2013] NZHC 1095

BETWEEN WAYNE CHARLES RODGERS AND FISHER LAMBERG TRUSTEE SERVICES LIMITED
Plaintiffs

ANDADVANCED CREATIVE TECHNOLOGIES LIMITED First Defendant

ANDMICHAEL JOHN LUST AND DAVID ROBERT PEACH AND WOLFGANG WRIGHT
Second Defendants

ANDJAMES FISHER AND SVETLANA FISHER Third Defendants

Hearing: (On the papers)

Counsel: A H Waalkens QC for the Plaintiffs
First Defendant appeared through the Second Defendants
Second Defendants in Person
Third Defendants in Person

Judgment: 15 May 2013

[COSTS] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 15 May 2013 at 9.30 a.m.
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

RODGERS V ADVANCED CREATIVE TECHNOLOGIES LIMITED HC AK CIV 2011-404-005863 [15 May
2013]

Introduction

[1] In a reserved judgment issued on 25 March 2013, I made an order pursuant to s 91(2)(a) of the Companies Act 1991 requiring that the share register of Advanced Creative Technologies Limited be rectified, to record that 286,229 shares held as at the date of judgment in the names of a Mr and Mrs Brown, be transferred to the plaintiffs.

[2] I also found that, as a result of the second defendant directors’ actions, the plaintiffs had been deprived of 73,771 shares in Advanced Creative Technologies Limited, which should have been transferred to them had the directors acted promptly and in accordance with their duties. It is no longer possible to direct that those shares be registered in the plaintiffs’ names. The parties had not raised before me how compensation for the loss of those shares should be assessed. I gave them the opportunity to do so. I have now received their submissions in that regard.

[3] I also invited the parties to file memoranda as to costs. Those memoranda have also been filed.

[4] In my judgment, I indicated that I would deal with the issues of compensation and costs on the papers, unless I required the assistance of the parties or their counsel.

[5] Having considered the memoranda, I do not require any assistance. I deal with the various matters raised as follows:

Recall of my decision

[6] In a supplementary memorandum dated 8 May 2013, the first and second defendants asked me to recall my decision, pursuant to r 11.9 of the High Court Rules.

[7] Such a request should not have been made by way of memorandum. It should have been made by way of separate application.

[8] Nevertheless, Mr Waalkens QC on behalf of the plaintiffs has responded to the memorandum. It is appropriate to deal with the issue on the papers that have been filed.

[9] The request that I should recall my judgment is declined.

[10] Recalling a judgment is a serious step, only to be taken in reasonably well identified situations. Those situations are identified in Horowhenua County v Nash (No 2).[1] A judgment, not perfected, can be recalled in the following situations:
[1] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at…

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 Rodgers v Advanced Creative Technologies Limited

Details

AGLC: Rodgers v Advanced Creative Technologies Limited [2013] NZHC 1095
Case: [2013] NZHC 1095
Decision Date: 15 May 2013

CaseChat Overview and Summary

Rodgers v Advanced Creative Technologies Limited was a case heard by Justice Wylie in the High Court of New Zealand, Auckland Registry. The plaintiffs, Wayne Charles Rodgers and Fisher Lamberg Trustee Services Limited, sought rectification of the share register of Advanced Creative Technologies Limited, to record that 286,229 shares held by Mr and Mrs Brown should be transferred to them. The plaintiffs also sought compensation for 73,771 shares that they were deprived of due to the actions of the second defendant directors. The main legal issues were whether the judgment should be recalled, the appropriate form of compensation for the loss of shares, and the costs to be awarded to the plaintiffs.

The court declined the request to recall the judgment, finding that there was no proper basis for doing so. The court held that the appropriate form of compensation was a payment of $12,295.16, being the pro rata apportionment of the purchase price paid by the plaintiffs for the shares. The court did not order the company to issue further shares, as it would affect other shareholders and potentially advantage the plaintiffs over others. The court also ruled that the compensation should be paid jointly and severally by the second defendant directors, as the claims were primarily aimed at them.

In terms of costs, the court awarded the plaintiffs costs against the second defendants on a 2B basis for the period up to 6 February 2013, and on an indemnity basis thereafter. The court increased the costs for the last day of trial and two days for preparation of written submissions by one third, in recognition of the Calderbank offer made by the plaintiffs. The court excluded the company from any order for the payment of costs and disbursements, as the claims were aimed primarily at the second defendant directors. The third defendants were ordered to pay their own disbursements, as the plaintiffs were not responsible for meeting those costs.

Orders