Smith v Albany Power Centre Ltd (in liq) - [2011] NZCA 167

IN THE COURT OF APPEAL OF NEW ZEALAND

CA236/2011
[2011] NZCA 167

BETWEEN M W SMITH
First Appellant

AND S P HODGE
Second Appellant

AND W HAWES
Third Appellant

AND G THRASHER
Fourth Appellant

AND J N HODGE
Fifth Appellant

AND B J HODGE
Sixth Appellant

AND ALBANY POWER CENTRE LIMITED (IN LIQUIDATION)
First Respondent

AND CHAPMAN TRIPP SHEFFIELD & YOUNG
Second Respondent

Hearing: 20 April 2011

Court: Glazebrook, Arnold and Randerson JJ

Counsel: M D O'Brien and B S Clarke for Appellants
H L Thompson for First Respondent
No appearance for Second Respondent

Judgment: 20 April 2011

ORAL JUDGMENT OF THE COURT

A The appeal is dismissed.

BThe appellants are to pay costs to the first respondent as for a standard appeal on a band A basis and usual disbursements.

___________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

The appellants appeal against a refusal by Simon France J to adjourn a fixture which is due to commence in the High Court in Wellington on 2 May 2011. The appellants are the first to sixth defendants in proceedings brought by the liquidators of the first respondent – Albany Power Centre Ltd (APC). The seventh defendant in those proceedings, Chapman Tripp, is represented by Mr MA Gilbert SC who has advised through counsel that the seventh defendant abides the decision of the court.
The proceedings in the High Court seek damages of the order of $16 million from the appellants who were directors of APC. APC was formed for the purpose of acquiring land and developing a retail shopping centre at Albany. It was funded by investors and was essentially a property owning syndicate. In 2002, APC agreed to sell the property it owned to Urbus Properties Ltd. The conduct of the directors in relation to that transaction lies at the heart of the proceedings.
The second amended statement of claim includes a number of different causes of action. Chief amongst these are that the appellants breached their duties as directors of APC in various ways. The claim against the seventh defendant is essentially for breach of solicitors’ professional duty. It is clear from the pleadings and from the other materials placed before us that this is a proceeding of some complexity both as to liability and quantum.
It is likely there will be 22 witnesses in all, including nine expert witnesses. The fixture has been set down for three weeks although counsel advise that the defendants consider it may take up to five weeks.
Mr Carruthers QC has been briefed to act for the appellants for some time and has acted for them in related proceedings already determined in the High Court. He is said to be very familiar with the history of the matter. The reason the appellants sought an adjournment of the proceedings was that Mr Carruthers is engaged in another fixture which was anticipated to have concluded prior to Easter. It now appears the prior fixture will not be completed in that timeframe and that Mr…

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 Smith v Albany Power Centre Ltd (in liq)

Details

AGLC: Smith v Albany Power Centre Ltd (in liq) [2011] NZCA 167
Case: [2011] NZCA 167
Decision Date: 20 April 2011

CaseChat Overview and Summary

In Smith v Albany Power Centre Ltd (in liq), the Court of Appeal of New Zealand dismissed an appeal against the refusal to adjourn a fixture scheduled to commence on 2 May 2011. The appellants, former directors of Albany Power Centre Ltd (APC), sought damages of approximately $16 million from the liquidators of APC, as well as the law firm Chapman Tripp. The appeal was based on the unavailability of their chosen counsel, Mr Carruthers QC, due to a clash with another fixture. The Court found that the appellants had not demonstrated that their rights to a proper evaluation of their case were irretrievably compromised, and thus, the appeal was dismissed.

The legal issue before the Court was whether the refusal to adjourn the fixture constituted an error in the balancing exercise required to determine the appropriate course of action. The Court noted that the fixture had been allocated in March 2010, and the case was fully ready for hearing. Additionally, Mr Cash, a partner at the firm of Bell Gully, was familiar with the matter and could potentially lead the case if necessary. The Court concluded that the level of prejudice to the appellants did not justify a delay of more than 12 months in resolving the matter. The Court of Appeal held that the trial judge had not erred in the balancing exercise, and thus, the appeal was dismissed.

The Court further ordered that the appellants were to pay costs to the first respondent as for a standard appeal on a band A basis and usual disbursements. The decision highlights the importance of maintaining administrative convenience and considering the interests of all parties involved in a case, including those of the plaintiff in liquidation and the investors in APC.

Orders