Sturgess v Dunphy - [2015] NZCA 265

IN THE COURT OF APPEAL OF NEW ZEALAND

CA366/2013
CA717/2013
[2015] NZCA 265

BETWEEN	JOHN GILBERT STURGESS Appellant
AND	ROBERT MARK PATRICK DUNPHY AND ORS Respondents

CA367/2013
BETWEEN	JET TRUSTEES LIMITED AND ANOR Appellants
AND	ROBERT MARK PATRICK DUNPHY AND ORS Respondents

Court:	Randerson, White and French JJ
Counsel:	Appellant in CA366/2013 and CA717/2013 and Second Appellant in CA367/2013 (in person) P G Skelton QC for First Appellant in CA367/2013 M D O’Brien and B Ward for First, Second, Seventh and Eighth Respondents in all appeals J F Anderson for Third to Sixth Respondents in all appeals
Judgment:	22 June 2015 at 10:00am

FINAL JUDGMENT OF THE COURT

AWe make a final order dismissing all appeals.
BWe order that Mr Sturgess as the appellant in CA366/2013 and CA717/2013 and as Second Appellant in CA367/2013 pay to the first, second, seventh and eighth respondents, two-thirds of the costs payable on a complex appeal band B basis and usual disbursements.
CWe order that Mr Sturgess as the appellant in CA366/2013 and CA717/2013 and as Second Appellant in CA367/2013 pay to the third to sixth respondents, two-thirds of the costs payable on a complex appeal band A basis and usual disbursements.
DWe order that Jet Trustees Ltd as the first appellant in CA367/2013 pay to the first, second, seventh and eighth respondents, one-third of the costs payable on a complex appeal band B basis and usual disbursements.
EWe order that Jet Trustees Ltd as the first appellant in CA367/2013 pay to the third to sixth respondents, one-third of the costs payable on a complex appeal band A basis and usual disbursements.
FWe certify for second counsel for the first, second, seventh and eighth respondents in each appeal.
G We make no order for costs for or against John Sturgess and Associates Ltd as the second appellant in CA367/2013.

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REASONS OF THE COURT

(Given by Randerson J)

Background

On 24 June 2014 this Court delivered an interim judgment relating to a dispute between shareholders in Greymouth Petroleum Holdings Ltd (the Company) and related entities.[1] The Court dismissed the appeals and the cross-appeal subject only to any further issues related to the form of relief in relation to orders 1 and 3 made in the High Court.
[1]Sturgess v Dunphy [2014] NZCA 266 [Interim judgment].
Orders 1 and 3 in the High Court provided:
1.The first defendant (Jet Trustees Limited) and the second defendant (Mr John Gilbert Sturgess) (together and separately “the Sturgess interests”) shall sell their shares (“the shares”) in Greymouth Petroleum Holdings Limited ([“]GPHL”) and in or in respect of all other companies and related entities owned legally or beneficially by the shareholders of GPHL (together an[d] separately “the Greymouth Group”), being in aggregate 13.856 per cent of the total of shares issued by those companies, at the fair market value (“the FMV”) determined by the arbitration (“the arbitration”) currently being undertaken by the parties to the 5309 proceeding and on such other terms or at such other price as…

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 Sturgess v Dunphy

Details

AGLC: Sturgess v Dunphy [2015] NZCA 265
Case: [2015] NZCA 265
Decision Date: 22 June 2015

CaseChat Overview and Summary

The case of Sturgess v Dunphy involved a dispute between shareholders in Greymouth Petroleum Holdings Ltd and related entities, with John Gilbert Sturgess and Jet Trustees Ltd as the appellants and Robert Mark Patrick Dunphy and others as the respondents. The legal issues centered on the enforcement of High Court orders requiring the sale of shares and the form of relief in relation to these orders. The Court of Appeal had to determine whether there were any outstanding issues requiring its attention and whether costs should be awarded to the respondents.

The Court of Appeal concluded that there were no further issues for determination by the Court in relation to the sale orders. The appellants had an opportunity to raise any such issues under the timetable set by the Court but did not take up that opportunity. It was now too late for them to do so. The Court further found that the range and complexity of issues in the appeals justified an award of costs to the respondents, with Mr Sturgess personally and Jet Trustees Ltd sharing the costs in a two-thirds/one-third basis.

The final orders made by the Court of Appeal were to dismiss all appeals. Mr Sturgess was ordered to pay two-thirds of the costs payable on a complex appeal band B basis and usual disbursements to the first, second, seventh, and eighth respondents, and two-thirds of the costs payable on a complex appeal band A basis and usual disbursements to the third to sixth respondents. Jet Trustees Ltd was ordered to pay one-third of the costs payable on a complex appeal band B basis and usual disbursements to the first, second, seventh, and eighth respondents, and one-third of the costs payable on a complex appeal band A basis and usual disbursements to the third to sixth respondents. The Court also certified for second counsel for the first, second, seventh, and eighth respondents and made no order for costs for or against John Sturgess and Associates Ltd as the second appellant in CA367/2013.

Orders