Sargison v McCabe - [2012] NZHC 3194

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-003300 [2012] NZHC 3194

BETWEEN PAUL GRAHAM SARGISON AND SIMON DALTON
Applicants

ANDDAVID ALLEN MCCABE First Respondent

ANDMEGAN RENEE MCCABE Second Respondent

ANDMICHAELA BLESER Third Respondent

Hearing: 12 November 2012

Appearances: S McAnally and B Hojabri for the Applicants
R B Hucker for the First and Third Respondents
No Appearance for the Second Respondent

Judgment: 29 November 2012

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie
On 29 November 2012 at 3.30 pm

Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Distribution:
S McAnally: smcanally@keegan.co.nz
R B Hucker: hucker@huckerlaw.com

SARGISON & ANOR V MCCABE & ORS HC AK CIV 2012-404-003300 [29 November 2012]

Introduction

[1] The applicants, Mr Sargison and Mr Dalton, are the liquidators of Club Crow Bar Ltd (“Club Crow”). They have sought orders, by way of originating application, requiring the respondents to:

(a) attend Court and be examined on matters relating to the affairs of

Club Crow; and

(b) to produce all documents of Club Crow in their possession or control. [2] The application is opposed by the first and third respondents — Mr McCabe

and Ms Bleser. The second respondent, Ms McCabe, has not been served. She is overseas, possibly in the United States, and the applicants have been unable to locate her. She was adjudicated bankrupt on 1 September 2011 on the petition of another entity.

[3] There are some preliminary issues that should be recorded.

(a) Messrs Sargison and Dalton sought leave to commence this proceeding by way of originating application. When the matter was first called before the Court on 20 July 2012, Associate Judge Sargisson noted that the applicants and the first and third respondents agreed that the matter should proceed as an originating application. The only issue reserved related to costs. When the matter was called before me, Mr McAnally, appearing for Messrs Sargison and Dalton, accepted that the application should be treated as an interlocutory application for costs purposes.

(b)There were two late affidavits filed. The first was an affidavit from the third respondent, Ms Bleser, dated 7 November 2012. The other was an affidavit in reply sworn by Mr Dalton, dated 9 November
2012. There was no opposition by either Mr McAnally, or Mr Hucker for Mr McCabe and Ms Bleser, to the late filing of the affidavits,

although Mr Hucker did suggest that aspects of Mr Dalton’s affidavit

in reply were inadmissible.

Backgrounds

[4] Club Crow was incorporated on 16 April 2009. The company’s sole director and shareholder was the second respondent, Ms McCabe. The company got into financial difficulties, and Messrs Sargison and Dalton were appointed joint liquidators of the company by the Court on 3 June 2011.

[5] Messrs Sargison and Dalton initially sought to obtain Club Crow’s financial records. They tried to get in contact with Ms McCabe for this purpose, but without success. Eventually, they managed to speak with Ms Bleser by telephone. She told them…

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 Sargison v McCabe

Details

AGLC: Sargison v McCabe [2012] NZHC 3194
Case: [2012] NZHC 3194
Decision Date: 29 November 2012

CaseChat Overview and Summary

The applicants, Mr Sargison and Mr Dalton, liquidators of Club Crow Bar Ltd, sought orders to compel the respondents, Mr McCabe, Ms Bleser, and Ms McCabe, to attend for examination and produce documents relating to the affairs of Club Crow. The first and third respondents opposed the application, while the second respondent, Ms McCabe, was not served due to her whereabouts being unknown. The legal issues before the court included whether the court had jurisdiction to make the orders and whether the orders should be granted. The court found that the first and third respondents were subject to s 261(2) of the Companies Act 1993, and thus, the court had jurisdiction to make the orders. The court also found that the orders should be granted as the liquidators needed the information to properly discharge their functions and duties, and the examinations would not impose unreasonable burdens on the respondents. The court ordered the respondents to attend for examination and produce relevant documents, and the liquidators were entitled to their costs and disbursements.

Orders