Sequitur Hotels Pty Ltd v Satori Holdings Ltd

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2420

[2020] NZHC 2032

BETWEEN

SEQUITUR HOTELS PTY LIMITED

First Plaintiff/First Respondent

SEQUITUR CAPITAL PTY LIMITED
Second Plaintiff/Second Respondent

AND

SATORI HOLDINGS LIMITED

First Defendant/First Applicant

ANDREW HUGH GRIFFITHS

Second Defendant/Second Applicant

Hearing:

25 June 2020

Counsel:

A S Olney and K P Woodward for Plaintiffs/Respondents

A M Glenie and A C van Ammers for Defendants/Applicants

Judgment:

12 August 2020

JUDGMENT OF WHATA J

This judgment was delivered by me on 12 August 2020 at 10.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Wilson Harle, Auckland

Glenie Legal, Limited, Auckland

SEQUITUR HOTELS PTY LIMITED v SATORI HOLDINGS LIMITED [2020] NZHC 2032 [12 August 2020]

[1]    The plaintiffs (collectively, Sequitur) are Australian companies. The directors of Sequitur, Mr and Mrs Fell, are also Australian. The first defendant, Satori Holdings Limited (Satori), is a company registered in both New Zealand and Fiji (as Satori Holdings Pte Limited). The second defendant, Mr Griffiths, is a New Zealand citizen, but a resident of Fiji. He is also a director of Satori. Proposed defendants include,  Mr Palmer, a New Zealand resident; and NJA Resorts Pte Limited (NJA Resorts), a company owned by Mr Palmer and registered in New Zealand and Fiji.

[2]    In December 2017, Sequitur purchased beneficial interests in a joint venture to own, develop, and operate a Fiji island resort called the Six Senses (the Resort). The terms of this purchase are recorded in the Joint Venture Interest and Capital Contribution Deed (the JVICC Deed). Clause 9.5 of the Deed provides that “the parties irrevocably submit to the non-exclusive jurisdiction of the Courts of New Zealand”.

[3]    The joint venture has not gone well. After talks between the joint venture parties broke down, Sequitur issued proceedings in Fiji claiming material non- disclosure about project funding and relationship issues. A without notice Mareva injunction freezing all of Satori’s and Mr Griffiths’ assets, together with Anton Piller orders, were obtained on 22 October 2019. Proceedings were then filed in New Zealand in early November 2019, claiming that Sequitur were misled about key operating costs of the Resort. The Fiji orders were subsequently discharged by the Fijian High Court in April 2020. The Judge was highly critical of Sequitur’s application for failure to properly disclose all relevant information. Those proceedings are ongoing.

[4]Satori and Mr Griffiths contend that:

(a)Leave was required and  not obtained to bring proceedings against  Mr Griffiths in New Zealand;

(b)claims against them based on the Fair Trading Act 1986 (FTA) and the Financial Markets Conduct Act 2013 (FMCA) cannot apply to them in

Fiji and/or in relation to the alleged conduct which occurred in Fiji, and that, in any event;

(c)Fiji is the proper forum for the dispute.

[5]I must therefore answer the following questions:

(a)Was leave required to commence proceedings against Mr Griffiths in New Zealand?

(b)Are the FTA and FMCA claims extra-territorial?

(c)Is New…