Rodgers v Advanced Creative Technologies Limited - [2013] NZHC 577

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2011-404-005863 [2013] NZHC 577

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: 4, 5 and 7 February 2013
Defendants' closing submissions filed 22 February 2013
Plaintiffs' closing submissions filed 8 March 2013

Counsel: A Waalkens QC and V J Knell for the Plaintiffs
First Defendant appeared through the Second Defendants
Second Defendants in Person
Third Defendants in Person

Judgment: 25 March 2013

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 25 March 2013 at 3.00 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

RODGERS & ANOR V ADVANCED CREATIVE TECHNOLOGIES LIMITED & ORS HC AK CIV 2011-404-
005863 [25 March 2013]

Introduction

[1] This case involves a dispute in relation to the transfer of shares in the first defendant company, Advanced Creative Technologies Limited (“ACTL”).

[2] The plaintiffs, Mr Rodgers and Fisher Lamberg Trustee Services Limited, are trustees of the Rodgers Investment Trust. They claim that a Mr Graemme Brown, and his wife, Debra Brown, as trustees of a trust known as the Kaiiwi Trust, transferred 360,000 shares in ACTL to them in December 2010 and January 2011. They say that they presented signed share transfers for these shares to the company in late January 2011 and complain that the second defendant directors failed to promptly register those transfers. Rather, the directors registered a later share transfer from the Browns to the third defendants, Mr and Mrs Fisher, as trustees of the JS Fisher trust, in respect of 81,860 shares. The plaintiffs seek that ACTL’s share register should be rectified.

[3] The second defendants are, and were at all material times, the directors of ACTL. They represented themselves at the hearing. They also represented ACTL. Although as a general rule, a company can only present a case in Court through legal counsel, there is a residual discretion to allow lay representation.1 I raised the issue with counsel for the plaintiffs and the defendants at the commencement of the trial. There was no objection to ACTL being represented by the second defendants. ACTL
is in a poor financial position. The claims made by the plaintiffs are aimed primarily at the second defendant directors, and not ACTL. It is necessarily a party to the proceedings, but there are no specific allegations against it. I was satisfied that it was appropriate to allow the company to be represented by its directors.

[4] There is one other preliminary issue that must be addressed. Shortly after the hearing concluded, the plaintiffs endeavoured to file a second amended statement of claim. I sent a minute to the defendants asking if they objected to the late filing of the document. The first and second defendants did object. There was no response from the third defendants. That is understandable because…

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 577
Case: [2013] NZHC 577
Decision Date: 25 March 2013

CaseChat Overview and Summary

This case involved a dispute in relation to the transfer of shares in Advanced Creative Technologies Limited (ACTL). The plaintiffs, Mr Rodgers and Fisher Lamberg Trustee Services Limited, sought rectification of ACTL's share register to reflect the transfer of 360,000 shares to them. The second defendants, the directors of ACTL, had delayed the registration of these shares and had registered a later share transfer in favour of the third defendants, Mr and Mrs Fisher. The legal issues included whether the directors had the right to delay or refuse the share transfers and if they acted in good faith and properly. The court found that the directors were entitled to delay the registration initially but failed to investigate the prior claims properly and acted in bad faith. The court ordered rectification of the share register to record the transfer of 286,229 shares to the plaintiffs, but not the 81,860 shares transferred to the Fishers, who were not on notice of the prior claim. The court also directed the parties to file submissions on compensation and costs.

Orders