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Wagner v Gill

Wagner v Gill

Case [2014] NZCA 336 18 July 2014

Breach of Fiduciary Duty

Unlawful Means Conspiracy

Loss of a Chance

Commercial Law

Corporate Law & Governance

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA428/2013
[2014] NZCA 336

BETWEEN	NICOLA JOANNE WAGNER Appellant
AND	ROBERT GILL First Respondent
DIGITAL PARTNERS (NZ) LIMITED Second Respondent
BRAND ADVANTAGE MEASUREMENT AND CONSULTING LIMITED Third Respondent
CPG YORK LIMITED Fourth Respondent
91991 LIMITED Fifth Respondent
11260 LIMITED (IN RECEIVERSHIP) Sixth Respondent
BRAND ADVANTAGE LIMITED (IN RECEIVERSHIP) Seventh Respondent

Hearing:	18 March 2014
Court:	Ellen France, French and Miller JJ
Counsel:	J R Eichelbaum for Appellant A R Gilchrist and L M Nicholson for Respondents
Judgment:	18 July 2014 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal is dismissed and the decision of the High Court confirmed.
BThe appellant must pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements of each of the respondents.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

Ms Wagner is owed money by two companies that were under the control of the first respondent, Mr Gill. Both companies are now in liquidation and there is no realistic prospect of Ms Wagner being able to recover the debt from either of them. Ms Wagner contends that Mr Gill together with various other entities associated with him deliberately stripped the assets of the debtor companies so as to defeat her claim. She says such conduct is actionable in the tort of unlawful means conspiracy.
Ms Wagner issued proceedings in the High Court for damages against the relevant entities and Mr Gill personally. The case was heard by Ellis J. The Judge found that the elements of the tort of unlawful means conspiracy were not established and that in any event the conduct complained about had not caused the loss because the two debtor companies were already insolvent.[1] The Judge dismissed the claim.
[1]Wagner v Gill [2013] NZHC 1304.
Ms Wagner now appeals that decision.
The key issues raised by the appeal are:
(a)Does a breach of fiduciary duty qualify as an unlawful means for the purpose of the tort of unlawful means conspiracy?
(b)What is the nature of the intention required under the tort? In particular, must the unlawful conduct be directed at the plaintiff?
(c)Is Ms Wagner entitled to damages on the basis of loss of a chance?

Background

Ms Wagner had established two websites, which she owned and operated through two companies.
In 2008 she sold 75 per cent of the shareholding in her two website companies to Digital Partners Ltd (DPL) for the sum of $700,000.
DPL was one of a group of companies owned and controlled by Mr Gill. The group comprised companies variously involved in the media, advertising, brand development and marketing.
DPL’s obligations to Ms Wagner under the sale agreement were guaranteed by another company in Mr Gill’s group, BA Partners Ltd (BAP). BAP was in the business of sponsorship management, including in particular arranging and managing sponsorship for Netball New Zealand Ltd (Netball NZ).
Under…

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 Wagner v Gill

Details

AGLC: Wagner v Gill [2014] NZCA 336
Case: [2014] NZCA 336
Decision Date: 18 July 2014 at 10.00 am

CaseChat Overview and Summary

Nicola Wagner appealed a decision of the High Court that dismissed her claim against Robert Gill and others for damages arising out of an alleged conspiracy to injure. Ms Wagner claimed that Mr Gill and others had stripped assets from two companies, which had resulted in her being unable to recover the debt they owed her. The Court of Appeal dismissed the appeal and held that the appeal was without merit. The Court found that the elements of the tort of unlawful means conspiracy were not established and that in any event the conduct complained about had not caused the loss because the two debtor companies were already insolvent. The Court also held that the appeal was not entitled to succeed on the basis of loss of a chance. The Court found that even if it had been prepared to undertake a loss of a chance analysis, Ms Wagner would likely have recovered a sum representing only 20 per cent of the arbitral award. The Court held that the appeal was dismissed and the decision of the High Court confirmed. The appellant must pay the respondents one set of costs for a standard appeal on a band A basis and usual disbursements of each of the respondents.

Orders