Sturgess v Dunphy - [2014] NZCA 45

IN THE COURT OF APPEAL OF NEW ZEALAND

CA366/2013
[2014] NZCA 45

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

Hearing:	24 February 2014
Court:	Randerson, White and Miller JJ
Counsel:	F E Geiringer for Appellant J A Farmer QC, M D O’Brien and S M Consedine for First, Second, Seventh and Eighth Respondents
Judgment:	28 February 2014 at 4:00 pm

JUDGMENT OF THE COURT

AThe application by the appellant for leave to adduce additional evidence and the associated application to amend the notice of appeal is dismissed.
BDirections are given as to the content of the case on appeal as per [33] and as to any adjournment application as per [34].
C The appellant must pay costs to the first, second, seventh and eighth respondents as for a standard application on a Band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by Randerson J)

Introduction

This appeal and two associated appeals[1] have been set down for a four day hearing in this Court commencing 24 March 2014. On 20 December 2013, the appellant, Mr Sturgess applied for leave to adduce further evidence on appeal and for an associated amendment to his notice of appeal. This judgment deals with that application as well as an objection by the respondents in respect of the content of one of the volumes in the case on appeal.

Background

[1]CA367/2013 and CA717/2013.

This appeal and the two associated appeals arise from proceedings determined in the High Court by Gilbert J on 8 May 2013 following a seven week trial.[2] The proceedings were issued to resolve major disputes that had arisen between the directors and shareholders of Greymouth Petroleum Holdings Ltd (the Company) whose business is in oil and gas exploration and production.
[2]Greymouth Holdings Ltd v Jet Trustees Ltd [2013] NZHC 1013.
There are three groups of shareholders:
·Mr Mark Dunphy and interests associated with him.
·Mr Peter and Mrs Joanna Masfen.
·Mr Sturgess and Jet Trustees Ltd (as trustee of a family trust associated with Mr Sturgess).
At relevant times, the Company had three directors: Mr Dunphy as the executive chairman; Mr Masfen as a non-executive director; and Mr Sturgess as the third director and chief operating officer (COO) of the Company.
At the outset of his judgment, Gilbert J recorded that:
[6] From late 2009, the relationship between Mr Sturgess and the other directors deteriorated to such an extent that in February 2011 Mr Dunphy purported to suspend the management contract pursuant to which Mr Sturgess’ services as COO were provided. Mr Sturgess disputes the validity of this suspension which was made permanent in May 2011. However, all parties agree that they cannot continue in business together.
The Dunphy and Masfen interests issued proceedings in August 2011 seeking an order under s 174 of the Companies Act 1993 requiring Mr Sturgess and his interests to sell their shares on the open market. They made wide-ranging complaints about the conduct of Mr Sturgess…

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 [2014] NZCA 45
Case: [2014] NZCA 45
Decision Date: 28 February 2014 at 4:00 pm

CaseChat Overview and Summary

This case before the New Zealand Court of Appeal involves an appeal from a decision of the High Court in proceedings related to major disputes between the directors and shareholders of Greymouth Petroleum Holdings Ltd, an oil and gas exploration and production company. The primary parties involved are John Gilbert Sturgess, the appellant, and Robert Mark Patrick Dunphy, among others, as respondents. The central issues revolve around allegations of breaches of reporting obligations and negligence by Mr Sturgess, who served as the Chief Operating Officer (COO) of the company. The court was required to determine whether additional evidence could be introduced on appeal, particularly if the respondents had failed to disclose certain documents as required under the discovery process. The court also had to decide on the proper content of the case on appeal, including whether certain affidavits should be included in full or redacted.

The Court of Appeal, in its judgment, rejected Mr Sturgess' application to adduce further evidence. The court found that the documents he sought to introduce were not fresh as he was already aware of their existence and could have produced them at trial. Furthermore, the court noted that even if there were some minor failures in the discovery process, the additional evidence did not meet the criteria of being credible and cogent, and would potentially lead to a substantial rehearing of the case. The court also addressed the content of the case on appeal, directing that only evidence adduced at trial or agreed upon in the High Court should be included, and that full affidavits not in evidence at trial should be excluded. The court emphasized the importance of maintaining the integrity of the trial process and ensuring that the appeal proceedings are efficient and fair.

The outcome of the appeal was that the application to introduce further evidence was dismissed, and directions were provided regarding the content of the case on appeal and any potential adjournment applications. The appellant was ordered to pay costs to the specified respondents.

Orders