Sudan v West - [2025] NZHC 422

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-000953

[2025] NZHC 422

UNDER the Companies Act 1993

BETWEEN

SUNNY SUDAN

Plaintiff

AND

ANNETTE WEST

First Defendant

360FIXIT LIMITED
Second Defendant

WEST FACILITY MANAGEMENT LIMITED

Third Defendant

Hearing: 6 March 2025

Appearances:

P Rice for the Plaintiff

T Ashley for the First Defendant

Judgment:

12 March 2025

JUDGMENT OF ASSOCIATE JUDGE COGSWELL

This judgment was delivered by me on 12 March 2025 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date.......................................

Solicitors:

Gaze Burt, Auckland
B Parshotam, Auckland

P Rice, Auckland S Wroe, Auckland

SUDAN v WEST [2025] NZHC 422 [12 March 2025]

Introduction and Background

[1] The plaintiff and the first defendant are the two directors and shareholders of the second defendant, 360Fixit Limited (360Fixit). This proceeding concerns cross- allegations of oppressive conduct under s 174 of the Companies Act 1993 relating to 360Fixit.

[2] The issues are whether the affairs of 360Fixit have been conducted by either party in a manner that is oppressive, unfairly discriminatory, or unfairly prejudicial to the other and, if so, what is the appropriate remedy.

[3] The parties are agreed that the first defendant acquire the shares of the plaintiff. The contest is whether the shares should be valued at the date of an alleged “lock-out” in late 2021, at the date of the hearing, or some other time.

[4] The background to the dispute is that the plaintiff says he was locked out of the company by the first defendant in late 2021. He says that he has been prevented from participating in 360Fixit’s business. He says he was denied access to company information that he was entitled to as a director.

[5] The first defendant says that the plaintiff abandoned his duties on behalf of the company, attempted to induce employees and a franchisee to join him in his own business and pursued interests in competition with the business of 360Fixit.

[6] One event that features in the applications before the Court is the operation of the bank accounts of 360Fixit and the first defendant. Following the alleged lock out, the plaintiff arranged for a brief freeze on the bank account operated by 360Fixit.

[7] That freeze was lifted, but the first defendant then started using her own bank account for the company’s operations. She named one of her own bank accounts “360Fixit trustee” account, but it is accepted that this is not a trust account. Disclosure of the transactions on that account to the plaintiff has already occurred.

[8] However, the first defendant’s use of her own bank account for the company’s business has led to the plaintiff seeking to set aside her claims to confidentiality attaching to her other personal bank accounts.

[9] Both parties seek to support their respective arguments that the Court should exercise its remedial discretion in their favour by seeking evidence from the other that shows poor conduct,…

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 Sudan v West

Details

AGLC: Sudan v West [2025] NZHC 422
Case: [2025] NZHC 422
Decision Date: 12 March 2025

CaseChat Overview and Summary

In Sudan v West, the High Court of New Zealand was asked to decide whether the first defendant, Annette West, was entitled to additional discovery from the plaintiff, Sunny Sudan, and whether Ms West was entitled to claim confidentiality over two categories of documents disclosed in her list of documents. The dispute arose from the management of 360Fixit Limited, a company in which both parties are directors and shareholders. The first defendant sought particular discovery of two categories of documents from the plaintiff. The plaintiff challenged the first defendant’s claim to confidentiality of two categories of documents disclosed in her list of documents. The first defendant sought further discovery from the plaintiff in the form of WhatsApp communications and correspondence between the plaintiff and staff and/or contractors and/or franchisees of 360Fixit. The Court found that the first defendant had not established a ground to believe that such documents exist. The first defendant sought discovery of documents relating to work done by the plaintiff for 360Fixit’s clients and the financial records of that work. The Court found that the first defendant had not established a ground to believe that such documents exist. The plaintiff sought to set aside the first defendant’s claim to confidentiality in her discovery affidavit over two categories of documents. The Court found that the job sheets were not confidential as between directors and that the plaintiff was entitled to inspect them. The Court found that the first defendant’s claim to confidentiality over her personal bank statements was set aside on the condition that the plaintiff gave an undertaking that he would not disclose the contents of the bank statements to any person without first obtaining the consent of the defendants in the proceedings or an order of the Court allowing disclosure. The Court ordered that the first defendant’s personal bank statements be released to the plaintiff on receipt by the first defendant of a written undertaking in the prescribed form and signed by the plaintiff. The parties were to liaise regarding costs, and if they were unable to agree on costs, they may file sequential memoranda seeking costs to the following schedule.

Orders