Wright Asset Management Limited - [2022] NZHC 1611

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-000237

[2022] NZHC 1611

UNDER Part 19 of the High Court Rules

IN THE MATTER

of an application by WRIGHT ASSET MANAGEMENT LIMITED as trustee of THE VERONA TRUST

Hearing: On the papers

Counsel:

Lady Deborah Chambers QC for Applicant

Judgment:

7 July 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 7 July 2022 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

RE WRIGHT ASSET MANAGEMENT LTD [2022] NZHC 1611 [7 July 2022]

[1]The applicant wishes to file an application seeking orders:

(a)releasing and discharging an undertaking given by David Lang of Saunders & Co, Solicitors, on 7 May 2021 to Claymore Partners acting on behalf of Patrizia Marchi; and

(b)authorising payment of the funds subject to the undertaking to the applicant.

Background

[2]By way of background to the application:

(a)Gary Wright and Patrizia Marchi are former de facto partners.

(b)In early 2021, Mr Wright and Ms Marchi were negotiating the terms of a s 21A Property (Relationships) Act 1976 agreement.

(c)On 6 May 2021, the applicant sold a property to facilitate payment to Ms Marchi under a draft s 21A agreement. The same day, Claymore Partners, who act for Ms Marchi, asked Mr Lang to confirm that the sale proceeds would be held in Saunders & Co’s trust account.

(d)On 7 May 2021, Mr Lang gave an undertaking to Claymore Partners “to hold the sale proceeds in our trust account undisbursed until such time as [Ms Marchi] agrees to them being paid out, or a court order is made in relation to the sale proceeds”.

(e)Settlement negotiations have broken down and the funds remain in Saunders & Co’s trust account. It will be said by the applicant that the purpose of the undertaking has been frustrated.

(f)Claymore Partners have refused to release the undertaking.

The application before me

[3] The application that is before me is a without notice interlocutory application seeking directions:

(a)Granting leave to commence the proceeding by way of originating application.

(b)As to service.

(c)That Ms Marchi is to file any opposition to the application within 10 working days of service.

[4] In a minute dated 15 June 2022, I directed that a supporting affidavit and memorandum of counsel should be provided, particularly for the application for directions as to service. I have now received a detailed and helpful memorandum with an affidavit of Lisa Jean Godwin, sworn 30 June 2022.

Commencement by way of originating application

[5] There is no standard procedural approach for applications to discharge solicitors’ undertakings.

[6]The applicant relies upon r 19.5 of the High Court Rules 2016 which provides:

19.5Court may permit proceeding to be commenced by originating application
(1)The court may, in the interests of justice, permit any proceeding not mentioned in rules 19.2 to 19.4 to be commenced by originating application.
(2)The court’s permission may be sought without notice.
(3)The…

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 Wright Asset Management Limited

Details

AGLC: Wright Asset Management Limited [2022] NZHC 1611
Case: [2022] NZHC 1611
Decision Date: 7 July 2022

CaseChat Overview and Summary

Wright Asset Management Limited applied to the High Court of New Zealand, Christchurch Registry, for directions in relation to an application to discharge an undertaking given by David Lang of Saunders & Co, Solicitors, on behalf of Patrizia Marchi. The application sought to discharge the undertaking and authorise the payment of the funds subject to the undertaking to the applicant. The application was brought under Part 19 of the High Court Rules, which allows for the commencement of proceedings by way of an originating application without notice. The court had to determine whether it was in the interests of justice to permit the proceeding to be brought under Part 19. The court considered the nature of the proceeding, the issues involved, and the potential for prejudice to any party. The court was satisfied that the proceeding was suitable for the originating application procedure and granted the application to proceed in this manner.

The court considered the application for directions regarding service and the time frame for opposition. The applicant sought to serve the application on Claymore Partners, who act for Patrizia Marchi, and for service on Claymore Partners to be deemed as service on Patrizia Marchi. The court directed that the application be served on Claymore Partners and Patrizia Marchi, and that any opposition to the application must be filed within 10 working days of service. If the application was opposed, it would be listed for a telephone case management teleconference to timetable it to a hearing.

The court made directions that the applicant could commence the proceeding by way of an originating application. Service of the application would be on Claymore Partners, who would be deemed to have served Patrizia Marchi. Any opposition to the application must be filed within 10 working days of service. If the application was opposed, it would be listed for a teleconference to timetable it to a hearing. If the application was not opposed, the applicant could request the Registrar to set the matter down in a Duty Judge List for hearing.

Orders