Wagner v Gill

[2013] NZHC 1304

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003509 [2013] NZHC 1304

BETWEEN  NICOLA JOANNE WAGNER Plaintiff

ANDROBERT GILL Defendant

DIGITAL PARTNERS LIMITED (IN RECEIVERSHIP)

Second Defendant

DIGITAL PARTNERS (NZ) LIMITED Third Defendant

BA PARTNERS LIMITED (IN RECEIVERSHIP)

Fourth Defendant (Discontinued)

(intituling continued over…)

Hearing:                   19-23, 29 November 2012

Appearances:           J R Eichelbaum for Plaintiff

A R Gilchrist for First, Third, Fifth, Sixth and Ninth Defendants

Judgment:                5 June 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 5 June 2013 at 3:00 pm

pursuant to R 11.5 of the High Court Rules.

Registrar / Deputy Registrar

Date………………………..

WAGNER v GILL [2013] NZHC 1304 [5 June 2013]

BRAND ADVANTAGE MEASUREMENT AND CONSULTING LIMITED

Fifth Defendant

CPG YORK LIMITED Sixth Defendant

91991 LIMITED (IN RECEIVERSHIP) Seventh Defendant (Discontinued)

11260 LIMITED (IN RECEIVERSHIP) Eighth Defendant (Discontinued)

BRAND ADVANTAGE LIMITED Ninth Defendant

[1]      As a consequence of an arbitral award made in February 2011, the second defendant, Digital Partners Ltd (DPL) owes the plaintiff, Mrs Nicola Wagner, approximately $319,000 together with costs of approximately $21,000.  The dispute that gave rise to the arbitration related to two agreements whereby Mrs Wagner had sold 75 per cent of the shares in two website companies owned by her to DPL.

[2]      DPL’s obligations to Mrs Wagner under the agreements were guaranteed by the fourth defendant, BA Partners Ltd (BAP).1   Both DPL and BAP are substantially owned and controlled by the first defendant, Mr Robert Gill.  Both companies are now  in  receivership  and  liquidation.    As  only  an  unsecured  creditor  of  the companies, Mrs Wagner is unlikely to receive payment from them.

[3]      For that reason Mrs Wagner seeks to recover the amount owing from Mr Gill personally.   To that end she alleges that Mr Gill and entities associated with him deliberately arranged their financial affairs in such a way as to defeat her claim.  In tortious terms, she says that they have conspired to injure her either by unlawful means or for an unlawful purpose.   She claims damages in the sum of the debt owing.

[4]      It is fair to say that Mrs Wagner and her counsel presented her claims as straightforward ones.  Her theory of the case was essentially “I am owed money and so should be paid” and Mr Eichelbaum’s approach was not much more sophisticated. The reality is, however, that Mrs Wagner’s claims bristle with difficult factual and legal issues.

[5]      The factual difficulties arise largely because Mrs Wagner was not, herself, able to give evidence about most of the matters in issue.  Rather, she asks the Court to draw inferences of dishonesty and illegality against the defendants largely based on circumstantial evidence.  And there are the further complicating factors I refer to at [17] to [21] below.

[6]      The  legal  difficulties  arise  largely  because  of  two  recent,  contentious, decisions in the House of Lords relating to the somewhat underused tort of unlawful

1 BAP was initially the fourth defendant but the claim against it has been discontinued.

means…