Stuart v Lightning Cleaning Services Limited - [2018] NZHC 862

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KOTI MATUA O AOTEAROA TAMAKI MAKAURAU ROHE

CIV-2017-404-971

[2018] NZHC 862

UNDER The Companies Act 1993

BETWEEN

GORDON JAMES STUART
Plaintiff

AND

LIGHTNING CLEANING SERVICES LIMITED
First Defendant

LUKE TIMOTHY ATTARD

Second Defendant

Hearing: 14 March 2018

Appearances:

D J Chisholm QC for Plaintiff

No appearance by or on behalf of First Defendant Second Defendant in person

M C Black as Amicus Curiae

Judgment:

30 April 2018

JUDGMENT OF POWELL J

This judgment was delivered by me on
30.04.18 at 4 pm, pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Burton Partners, Auckland
Counsel:D Chisholm QC, Auckland M C Black, Auckland

STUART v LIGHTNING CLEANING SERVICES LIMITED & Anor [2018] NZHC 862 [30 April 2018]

[1] On 15 November 2017 the second defendant, Luke Attard, was committed for contempt of court. Specifically, Hinton J determined that Mr Attard was in breach of orders made by Toogood J on 2 October 2017, and recorded:

[8] I gave Mr Attard the opportunity to address me. While he maintained that he had provided the information sought, and raised various other extraneous arguments which I told him I was not prepared to deal with, it was clear on questioning him that he had not in fact provided the information ordered. He confirmed that he had access by way of his phone to electronic records of the bank statements sought and so could provide them today. He indicated that he might provide them to me, but he was not prepared to provide them to the plaintiff, nor for that to happen via the documents first being vetted by me. In short, Mr Attard seeks to argue amongst other things that the information has been provided but in a far more convoluted way than the manner actually ordered and without the documentary proof which is clearly required, and more to the point has been ordered.

[9] I gave Mr Attard the opportunity to confirm that he would provide to Mr Chisholm today at a minimum the bank statements for the relevant period for the two entities, thereby avoiding committal for contempt. He made it clear he was not prepared to do this and I therefore made an order that he be committed for contempt, to be brought back before me tomorrow morning at
10.00 a.m.

[2] Mr Attard remained in custody until the following day when, following a second appearance before Hinton J and a second refusal to provide the relevant information, he belatedly agreed to provide the bank statements referred to in the orders, with leave being reserved for the plaintiff to confirm whether any further compliance with the orders was required.

[3] Mr Chisholm QC as counsel for the plaintiff, Gordon Stuart, subsequently confirmed that no further information was sought in relation to the 2 October 2017 orders, with the result that the proceedings were adjourned to the present hearing for the purpose of determining the penalty…

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 Stuart v Lightning Cleaning Services Limited

Details

AGLC: Stuart v Lightning Cleaning Services Limited [2018] NZHC 862
Case: [2018] NZHC 862
Decision Date: 30 April 2018

CaseChat Overview and Summary

In Stuart v Lightning Cleaning Services Limited, Gordon James Stuart sought to wind up Lightning Cleaning Services Limited on just and equitable grounds. Luke Timothy Attard, the second defendant, was found in contempt for failing to comply with court orders to provide information about the proceeds of sale of Lightning's assets. The case involved multiple court hearings and orders over several weeks, with Attard consistently refusing to comply with the orders. The High Court of New Zealand ultimately found Attard in contempt and ordered a penalty of $10,000 in fines and $20,000 in costs, to be split between the plaintiff and the Crown. The court also imposed a potential 20-day imprisonment if the fines and costs were not paid within 30 working days. The court emphasized the seriousness of the contempt, noting that Attard had been given numerous opportunities to comply with the orders and had blatantly defied the court's authority. The penalty was deemed appropriate to denounce Attard's conduct, hold him accountable, deter others from acting similarly, and ensure the administration of justice was upheld.

Orders