Walker v Angus - [2018] NZHC 2354

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2017-409-933

[2018] NZHC 2354

BETWEEN
ROBERT BRUCE WALKER

Applicant

AND

GEOFFREY DAVID ANGUS

First Respondent

DESMOND JOHN KNOWLES
Second Respondent

DAVID RONALD KITSON
Third Respondent

GRANT SMITH

Fourth Respondent

Hearing: 3 July 2018

Appearances:

G Slevin for Applicant

J B Lill for First and Second Respondents G Hair for Third Respondent

D Ballantyne for Fourth Respondent

Judgment:

7 September 2018

JUDGMENT OF MANDER J

[1] The applicant, Mr Robert Walker, is the liquidator of two companies, Te Anau Ventures Ltd (Te Anau) and Tay Properties Ltd (Tay). Both are wholly owned subsidiaries of Property Ventures Ltd (PVL), in respect of which he is also the liquidator.

[2] Mr Walker has made application pursuant to the Companies Act 1993 (the Act) for orders directing the first and second respondents, Messrs Geoffrey Angus and Desmond Knowles to provide documents to him which are said to be in their

WALKER v ANGUS [2018] NZHC 2354 [7 September 2018]

possession or under their control.1 Both Messrs Angus and Knowles are directors of Secured Finance Ltd (SFL) and The Secured Investment Company Ltd (SICL), the latter under its previous name of Secured Lending Limited. These companies entered into loan agreements with Te Anau and Tay.

[3] Orders to produce documents are also sought in respect of the third and fourth respondents, Messrs David Kitson and Grant Smith. Accounting services relating to the Te Anau and Tay loans were provided to SFL and SICL and/or an assignee of those loans by Taurus Group Ltd (Taurus) or a related entity within the Taurus group of companies. Mr Kitson is a director of Taurus. Because of correspondence received from Taurus, Mr Walker believes the documents he seeks were provided to Mr Grant Smith who is the principal of the firm of solicitors which acted for the company, FTG Ltd (FTG), that purchased SFL and SICL’s rights under the loan agreements.

[4] Each of the respondents opposed the making of orders to produce the documents and records sought by Mr Walker. In the event that orders are made, Messrs Angus, Knowles and Smith seek reasonable remuneration and payment of expenses in complying with the orders.

[5] Leave was granted to file a number of further short affidavits from the parties. Mr Walker also made application to include in the list of documents to be provided copies of the electronic files containing the general ledgers for SFL and SICL for loans made by them to Te Anau and Tay. That application is dealt with at [90]-[95].

Background

Te Anau

[6] Te Anau was incorporated in August 2003 for the purpose of purchasing and developing land. It created and sold some 170 sections. During the course of that commercial enterprise, it obtained loans and became indebted to SFL and SICL. Those companies obtained a first mortgage over Te Anau’s sections. Te Anau was placed into liquidation on 7 September 2009. Its first liquidator reported…

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 Walker v Angus

Details

AGLC: Walker v Angus [2018] NZHC 2354
Case: [2018] NZHC 2354
Decision Date: 7 September 2018

CaseChat Overview and Summary

The liquidator of Te Anau Ventures Ltd and Tay Properties Ltd, Mr Robert Walker, has made application pursuant to the Companies Act 1993 for orders directing Messrs Geoffrey Angus and Desmond Knowles, directors of Secured Finance Ltd and The Secured Investment Company Ltd, to provide documents to him which are said to be in their possession or under their control. The documents are related to loans provided by Secured Finance Ltd and The Secured Investment Company Ltd to Te Anau and Tay, and the mortgagee sales of properties owned by Te Anau. Mr Walker also seeks orders directing Mr David Kitson, a director of Taurus, and Mr Grant Smith, a director of Canterbury Legal, to produce documents. The respondents opposed the making of orders and in the event that orders are made, Messrs Angus, Knowles and Smith seek reasonable remuneration and payment of expenses in complying with the orders. The Court was required to balance the need to enable a liquidator to obtain information to investigate the affairs of the company against the effect of an order on the party being compelled to produce the documents. The Court found that the liquidator had established a proper basis upon which to obtain the production of the information he seeks for the purpose of carrying out his functions. However, the exercise or the resort to the Court’s powers to compel the production of documents placed an unnecessary and unreasonable burden on the respondents. The Court made orders for the production of documents, subject to exceptions, and declined the respondents’ applications for remuneration and expenses.

Orders