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Ruscoe v Epic Trust Limited

Ruscoe v Epic Trust Limited

Case [2025] NZHC 2138 1 August 2025

Jurisdiction

Breach of Confidence

Misleading and Deceptive Conduct

Injunction

Permanent Injunction

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-58

[2025] NZHC 2138

UNDER the Trade Marks Act 2002 and the Fair Trading Act 1986

IN THE MATTER

of breach of confidence

BETWEEN

DAVID IAN RUSCOE and MALCOLM RUSSELL MOORE of

Grant Thornton New Zealand Limited as liquidators of Cryptopia Limited (in

liquidation) First Plaintiffs

CRYPTOPIA LIMITED (in liquidation) Second Plaintiff

AND

EPIC TRUST LIMITED

First Defendant

THOMAS VICTOR HENRY RONALD CATTERMOLE
Second Defendant

MARTIN BRAINE
Third Defendant

PERSONS UNKNOWN

Fourth Defendant

Hearing: 4 April 2025

Appearances:

J McGrath and B Marriner for Plaintiffs Second Defendant In Person

Judgment:

1 August 2025

JUDGMENT OF ASSOCIATE JUDGE SKELTON

RUSCOE v EPIC TRUST LIMITED [2025] NZHC 2138 [1 August 2025]

TABLE OF CONTENTS

Introduction [1]

Background and procedural history [11]

Jurisdiction [20]

My assessment [27]

Leave to apply for summary judgment [35]

Summary judgment [51]

Breach of confidence [56]

Is the information confidential? [57]

Has the information been communicated in circumstances importing an
obligation of confidence?  [59]
Has there been unauthorised use to the detriment of those entitled to the
benefit of the confidence?  [60]
Defences  [72]
Conclusion as to breach of confidence  [75]

Misleading and deceptive conduct – s 9 of the Fair Trading Act 1986 [76]

Are the defendants in trade? [79]

Misleading or deceptive conduct? [82]

Conclusion as to breach of s 9 of the FTA [92] Permanent injunctions [93]

Strike-out [99]

Counsel to assist and appointment of experts [106]

Result [116]

Introduction

[1] This proceeding is one of many relating to the consequences of the hack on the cryptocurrency exchange run by Cryptopia Ltd (in liquidation) (Cryptopia) in January 2019.1 The plaintiffs advance three causes of action against the four defendants: breach of confidence, breach of the Trade Marks Act 2002 and misleading or deceptive conduct contrary to s 9 of the Fair Trading Act 1986 (FTA).

[2] In the application before me, filed on 16 January 2025, the plaintiffs seek leave to apply for summary judgment and orders granting summary judgment against the four defendants in respect of the first and third causes of action. In the alternative, they seek strike out of the second defendant’s statement of defence. The plaintiffs say that if they are successful in obtaining summary judgment for the first and third causes of action, they will withdraw the second cause of action. The plaintiffs seek permanent injunctions in respect of the first and third causes of action.

[3] The defendants were required to serve notices of opposition and affidavit evidence in support by 27 March 2025.2 The second defendant, Thomas (Victor) Cattermole, filed a notice of opposition and affidavit by that date. Mr Cattermole opposes the application for summary judgment on the basis that this Court lacks jurisdiction. At the same time, Mr Cattermole also filed an interlocutory application seeking the appointment of an amicus curiae in this proceeding to assist the court on jurisdictional issues and international legal principles. Subsequently, on 1…

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 Ruscoe v Epic Trust Limited

Details

AGLC: Ruscoe v Epic Trust Limited [2025] NZHC 2138
Case: [2025] NZHC 2138
Decision Date: 1 August 2025

CaseChat Overview and Summary

The case of Ruscoe v Epic Trust Limited, heard by Associate Judge Skelton of the High Court of New Zealand, addresses a complex dispute involving multiple parties and significant allegations of breach of confidence and misleading conduct. The plaintiffs, David Ian Ruscoe and Malcolm Russell Moore as liquidators of Cryptopia Limited, along with Cryptopia Limited itself, brought claims against Epic Trust Limited, Thomas Victor Henry Ronald Cattermole, Martin Braine, and persons unknown, arising from the aftermath of a significant cryptocurrency exchange hack in January 2019. The plaintiffs sought summary judgment on their first and third causes of action, breach of confidence and misleading or deceptive conduct under the Fair Trading Act 1986, respectively, as well as permanent injunctions and leave to apply for summary judgment.

The court found that the plaintiffs were entitled to summary judgment on both the breach of confidence and misleading or deceptive conduct claims. In relation to the breach of confidence, the court held that the confidential information regarding Cryptopia's account holders and their cryptocurrency holdings met the necessary quality of confidence, was communicated under circumstances importing an obligation of confidence, and had been unauthorisedly used to the detriment of those entitled to the benefit of the confidence. Regarding the misleading or deceptive conduct, the court determined that the defendants' communications to Cryptopia's account holders were misleading and deceptive, as they falsely implied affiliations with the liquidators and misrepresented the legality and legitimacy of their actions.

The court granted permanent injunctions against the defendants, restraining them from using, disclosing, or referring to the confidential information and from making misleading and deceptive statements. The court also ordered the defendants to deliver up any confidential information in their possession, destroy any copies, and disclose to whom they had provided such information. In relation to the application for appointment of counsel to assist, the court declined to exercise its discretion to appoint counsel, finding that the court was capable of reaching a decision without such assistance. The court also dismissed Mr Cattermole's application for appointment of counsel to assist, determining that it was not necessary or appropriate to appoint counsel in the circumstances of this case.

The final orders included granting summary judgment to the plaintiffs on the first and third causes of action, issuing permanent injunctions, and awarding costs to the plaintiffs, with an expectation that the parties would endeavour to agree on the costs. This decision underscores the importance of protecting confidential information and preventing misleading conduct in the context of complex commercial disputes involving digital assets and emerging technologies.

Orders