Williams v Cameron - [2016] NZHC 264

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2014-442-088 [2016] NZHC 264

BETWEEN
PETER ANTHONY WILLIAMS

Appellant

AND

TREVOR NELSON CAMERON First Respondent

ROBIN WHALLEY Second Respondent

RICHARDS WOODHOUSE Third Respondent

CIV 2015-442-58

BETWEEN PETER ANTHONY WILLIAMS Applicant

ANDTHE OFFICIAL ASSIGNEE First Respondent

TREVOR NELSON CAMERON, ROBIN WHALLEY, RICHARDS WOODHOUSE CHARTERED ACCOUNTANTS
Second Respondents

Hearing: 2 February 2016

Appearances:

S J Zindel for the appellant
S Galbreath for the respondents

Judgment:

24 February 2016

JUDGMENT OF MALLON J

Introduction

[1] Mr Williams and an associated company, Williams Turbochargers Ltd, brought a damages claim against their former accountants arising out of the sale of

WILLIAMS v CAMERON [2016] NZHC 264 [24 February 2016]

his business. An issue arose as to whether the claim had been settled. The District Court held that a settlement had been reached with the consequence that his claim could not proceed.1 A costs order was made against Mr Williams. Mr Williams did not pay the costs order. As a result he was made bankrupt and the company was put into liquidation.

[2] Mr Williams now wishes to appeal the District Court judgment. There are three applications for my consideration:

(a) an application for a vesting order of disclaimed property;2

(b)an application for leave to appeal a District Court judgment out of time;3 and

(c) an application for leave to adduce evidence in support of the appeal.

Background

[3] In 2004 the respondents acted for Mr Williams and his company (the vendors) and for another client (the purchaser) on the sale of the company’s marine business for $800,000. Mr Williams takes the view that the respondents failed to disclose a valuation which valued the business at $957,000. He learned of this valuation in 2006.

[4] In February 2007 the respondents issued an invoice to Mr Williams’ company for $8597.06 in relation to the preparation of its accounts. In mid-2007 Mr Williams sent the respondents a backdated invoice for $226,534.83 said to be for losses in the sale of the business arising from the undisclosed valuation. Mr Williams also complained to the NZ Institute of Chartered Accountants (NZICA). In October 2007
the complaint was dismissed on the basis of evidence from the respondents.

1      As explained further at [8] some particulars of his claim were not covered by the settlement.
2      Pursuant to s 119(2) of the Insolvency Act 2006.
3      Williams v Cameron DC Nelson CIV-2009-042-544, 26 October 2012 [District Court Judge
Tuohy].

[5] In December 2007 a meeting took place between Mr Williams, his new accountant (Mr French) and representatives of the respondents. At the meeting it was proposed that the respondents write off their invoice and Mr Williams would drop his claim. Mr Williams did not agree to the proposal at this stage. Subsequently a discussion between Mr Williams and Mr French took place, and Mr French then made a telephone call to Mr Cameron on 19 December 2007. The respondents contended that a settlement was reached in that telephone conversation.

[6] In 2009…

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 Williams v Cameron

Details

AGLC: Williams v Cameron [2016] NZHC 264
Case: [2016] NZHC 264
Decision Date: 24 February 2016

CaseChat Overview and Summary

Peter Williams and his associated company, Williams Turbochargers Ltd, initiated a damages claim against their former accountants, Trevor Nelson Cameron, Robin Whalley, and Richards Woodhouse Chartered Accountants, arising from the sale of his business. Williams alleged that the accountants failed to disclose a valuation which valued the business at $957,000. The dispute centred on whether a settlement had been reached between the parties, and if so, whether it covered all claims. The District Court held that a settlement had been reached and dismissed the claim. Williams subsequently appealed the decision but did not pay the costs order, resulting in his bankruptcy and the liquidation of his company.

The legal issues before the court were whether a vesting order should be granted, whether leave should be granted to adduce evidence in support of the appeal, and whether special leave should be granted to extend the time to bring an appeal. The court considered the merits of the appeal, the delay in lodging the appeal, and the prejudice to the respondents. The court found that the prospects of success of the appeal were very low, and the delay in lodging the appeal caused prejudice to the respondents. The court also found that the application for leave to adduce evidence related to a possible separate proceeding which appeared to have no merit.

The court dismissed all applications and noted that over 11 years had passed since the sale of the business, eight years since a settlement was reached, and over three years since the District Court decision. The respondents were now entitled to finality. The court emphasised that the purpose of removing litigation rights from a bankrupt person was to prevent defendants/respondents from incurring irrecoverable costs. The court did not see how the appeal or the application for leave to adduce evidence could assist Williams.

In summary, the court dismissed all applications and emphasised the importance of finality in legal disputes. The court found that the delay in lodging the appeal, the prejudice to the respondents, and the very low prospects of success of the appeal meant that it was not in the interests of justice to grant special leave. The court also found that the application for leave to adduce evidence related to a possible separate proceeding which appeared to have no merit. The court dismissed all applications and noted that the respondents were now entitled to finality.

Orders