Wagner v B Property Group Limited - [2024] NZHC 911

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-22

[2024] NZHC 911

UNDER Section 178 of the Companies Act 1993 and Part 19 of the High Court Rules 2016

BETWEEN

KURT BRADLEY WAGNER

Applicant

AND

B PROPERTY GROUP LIMITED

Respondent

Hearing: (On the papers)

Counsel:

M Kersey and V V Kumar for Applicant P W G Ahern for Respondent

Judgment:

24 April 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

(in respect of application for leave to appeal)

WAGNER v B PROPERTY GROUP LIMITED [2024] NZHC 911 [24 April 2024]

[1] This proceeding was commenced by an originating application heard by Dunningham J on 17 July 2023 with her Honour’s judgment being released on 20 July 2023.1 Dunningham J made detailed orders pursuant to s 178 of the Companies Act 1993 (the Act), requiring B Property Group Ltd (BPG) to provide documents and records to Kurt Wagner (Mr Wagner).

[2] The sole director of BPG is Andrew McIntosh (Mr McIntosh). Mr McIntosh is a 50 per cent shareholder in BPG, along with Mr Wagner.

[3] Dunningham J’s orders went further than requiring simply the production of documents. One order called for the provision of information including emails or documents, while another required an explanation as to how accounting records were kept.

[4] Order [2] made by Dunningham J granted the applicant leave to apply for further information.

[5] Mr Wagner was dissatisfied with BPG’s compliance with Dunningham J’s orders and, by an interlocutory application, sought orders requiring compliance with Dunningham J’s orders and further categories of documents. That opposed application was heard by me on 8 November 2023. Further orders were made requiring Mr McIntosh to provide further information to Mr Wagner.

[6] BPG seeks leave to appeal my decision released on 15 November 2023 (the November judgment).2

Application for leave to appeal

[7] The application for leave to appeal is made on four grounds, the last three broadly covering the same grounds.

[8] The first and main ground relates to jurisdiction and asserts that an Associate Judge does not have jurisdiction to deal with that application under s 178 of the Act

1 Wagner v B Property Group Ltd [2023] NZHC 1898.
2 Wagner v B Property Group Ltd [2023] NZHC 3230 [November judgment].

and the application which I determined was not an interlocutory application and therefore, I did not have jurisdiction to deal with the application. Further, it is asserted that even if the application was interlocutory in nature, that fact could not confer jurisdiction on me when such a jurisdiction was not conferred by the Senior Courts Act 2016 — s 178 of the Act not being a section listed in s 20(2) of the Senior Courts Act in relation to Associate Judge’s jurisdiction.

[9] It is said that the issue of whether the Court had jurisdiction and whether jurisdiction can be conferred on an Associate Judge through r…

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.

Keep reading for free

Create a free CaseChat account to read Wagner v B Property Group Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NZHC 911
Decision Date: 24 April 2024

CaseChat Overview and Summary

Wagner v B Property Group Limited [2024] NZHC 911 was an application for leave to appeal against a decision of an Associate Judge in the High Court of New Zealand, Invercargill Registry. The case concerned an originating application under s 178 of the Companies Act 1993, where Kurt Wagner sought information from B Property Group Limited (BPG), a company in which he and Andrew McIntosh, the sole director of BPG, are 50 per cent shareholders. The legal issues revolved around the jurisdiction of an Associate Judge to hear and determine the application, the scope of information sought, and whether the orders made were within the bounds of what was reasonably required.

The court considered the jurisdictional argument first, noting that the application was an interlocutory one, seeking enforcement of previous orders and additional information. The Associate Judge held that the application was properly classified as interlocutory and that r 2.1 of the High Court Rules 2016 conferred jurisdiction on an Associate Judge to deal with such applications. The court found that the issue of jurisdiction did not meet the threshold for leave to appeal as it did not present an arguable error of law. Regarding the remaining grounds, the court held that the orders were not against Mr McIntosh personally but were directed at BPG, and any affidavit had to be sworn by Mr McIntosh as the sole director. The court also found that the scope of information sought was not beyond what was reasonably required, especially given the company's assertion that much of the information did not exist in written form.

The court concluded that leave to appeal should be declined as the issues raised did not meet the threshold for leave and were not matters of general or public importance. The court noted that the interests of justice did not favour granting leave to appeal, especially given Mr McIntosh's resistance to providing the information Mr Wagner was entitled to under the Companies Act. The court awarded costs to Mr Wagner on a 2B basis and disbursements as fixed by the Registrar.

This case underscores the importance of correctly classifying applications and understanding the jurisdictional powers of Associate Judges in the High Court of New Zealand. It also highlights the need for companies to maintain proper records and be transparent with shareholders seeking information under the Companies Act.

Orders