Wagner v B Property Group Limited - [2023] NZHC 3230

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-22

[2023] NZHC 3230

UNDER the Companies Act 1993

BETWEEN

KURT BRADLEY WAGNER

Applicant

AND

B PROPERTY GROUP LIMITED

Respondent

Hearing: 8 November 2023

Appearances:

S P Pope and V V Kumar for Applicant (by VMR) P W G Ahern for Respondent (by VMR)

Judgment:

15 November 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

WAGNER v B PROPERTY GROUP LIMITED [2023] NZHC 3230 [15 November 2023]

[1] On 20 July 2023, Dunningham J made orders requiring B Property Group Limited (BPG) to provide Mr Wagner with a range of information.1 Mr Wagner does not accept BPG has complied with those orders and is seeking by interlocutory application, further orders said to be necessary to ensure BPG meets its obligations under the existing orders.

[2] As well as seeking what might be called compliance orders, further disclosure from BPG is sought, said to arise from BPG’s disclosure to date. Further disclosure is sought in reliance of leave reserved in the 20 July 2023 judgment.

[3] The background to the present proceeding is set out in the 20 July 2023 judgment, but it is sufficient to say that in May 2022, Mr Wagner agreed to invest
$10,000,000.00 in BPG on the basis those funds would be used to develop a hotel in Wānaka.

[4] Mr Wagner had concerns about the progress of the development in Wānaka and sought information as to how his funds had been applied to the project. That disclosure showed that his money had been disbursed to “related parties”, that is, to companies associated with Mr Andrew McIntosh, the director of BPG and the holder of the other 50 per cent of the shares, or to Mr McIntosh personally.

[5] Accordingly, in terms of the first part of Mr Wagner’s application, the issue is whether the further documents sought are caught by the terms of the 20 July 2023 judgment; if they are, then the documents should have been disclosed and compliance orders are appropriate. As to the second aspect of the application, that is, the further disclosure, the issue is whether the principles applying to s 178 of the Companies Act 1993 (the Act) require further information be disclosed.

[6] I note here that s 178 of the Act is not one of the sections listed in s 20(2) of the Senior Courts Act 2016 in relation to which Associate Judges have jurisdiction. However, the present application is by way of an interlocutory application for

1 Wagner v B Property Group Ltd [2023] NZHC 1898.

enforcement or pursuant to leave reserved. Prior to the hearing, Ms Pope, counsel for Mr Wagner, set out why she considered an Associate Judge had jurisdiction to hear this application. Mr Ahern, counsel for BPG, did not take issue with Ms Pope’s conclusion.2

Compliance disclosure

[7] The orders made by Dunningham J required comprehensive disclosure of bank accounts and credit card statements…

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: [2023] NZHC 3230
Decision Date: 15 November 2023

CaseChat Overview and Summary

The High Court of New Zealand was asked to determine whether B Property Group Limited (BPG) had complied with previous orders to disclose financial information to Kurt Bradley Wagner, a shareholder. Wagner, who had invested $10 million in BPG for a hotel development project, was concerned about the use of his funds. The court was required to decide if BPG had sufficiently disclosed the requested financial documents and if further disclosure was warranted under the Companies Act 1993. The issues included whether the additional documents sought fell under the previous court orders and whether further disclosure was necessary under the principles of section 178 of the Companies Act.

The court found that BPG had not complied with the previous orders as it failed to provide documents that recorded related party loans and payments. The court held that it was implausible that BPG had disbursed large sums without any documentary evidence. The company was required to provide detailed explanations of each loan and payment, and full access to the accounting files used to prepare the company’s financial statements. Regarding further disclosure, the court ruled that the information sought was relevant to Wagner's interests as a 50% shareholder and was necessary to understand the financial transactions within the company. The court ordered BPG to provide bank statements, details of any loans made or received, and access to their accounting records on Xero. Additionally, BPG was directed to disclose tax returns and credit card information. The court concluded that BPG's resistance to full disclosure justified Wagner's request for comprehensive information.

The court ordered BPG to provide the required affidavits and documents within ten working days. The judgment also determined that Wagner was entitled to costs, which would be addressed alongside his existing application regarding the costs from the previous judgment.

Orders