TEAM BARRY V FORLONG HC AK CIV.2003-404-5593

TEAM BARRY V FORLONG HC AK CIV.2003-404-5593

The court ordered that (1) all remaining substantive issues be heard at a single allocated fixture and heard sequentially with the EMA issue first; (2) except for accountants' fees ordered to be paid as they fall due, no interim payments are to be made from the sale proceeds until the parties' overall financial rights and liabilities are finally determined; (3) Tuaman's stay application against the EMA counterclaim was dismissed because it was premature and the election issue required evidence; (4) Horwath Porter Wigglesworth were to be paid outstanding invoices forthwith (NZ$2,322.56 and proper future invoices); (5) a timetable for filing the counterclaim and defences was imposed...

Citation
openlaw-39f9de29_a05d_42a1_86bc_195a80c4cf4b.pdf
Parties
First Plaintiff: TEAM BARRY LIMITED; Second Plaintiff: TUAMAN INC LIMITED; Third Plaintiff: MARTIN PUGH; Fourth Plaintiff: KEVIN BARRY; First Defendant: ANTHONY J FORLONG; Second Defendant: LUKE ANDREW BOWELL KEMP; Third Defendant: MAFAUFAU SITA (AKA DAVID TUA); Fourth Defendant: VAAIGA LELAGA TUIGAMALA; Counterclaim Defendant: SALLY FERGUSSON CROSS; Counterclaim Defendant: MARK GILL
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 November 2006
Procedural Posture
Civil High Court / Interlocutory Case Management Pre Trial
Outcome
Interlocutory orders directing case management: single fixture to hear all remaining substantive issues sequentially with EMA first; timetable imposed; limited payments ordered and other payment applications dismissed; stay applications dismissed.
Legal Topics
Exclusive Management Agreement, Election Between Remedies, Undue Influence, Counterclaim, Stay/striking Out, Pleadings and Amendment, Timetable and Fixture, Payment From Stakeholder Funds, Caveat, Accounting and Trace
Contract Company Law Trusts and Equity Property Law Civil Procedure Professional Negligence Costs Exclusive Management Agreement +9 more

Case Brief

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Parties

TEAM BARRY LIMITED

First Plaintiff

TUAMAN INC LIMITED

Second Plaintiff

MARTIN PUGH

Third Plaintiff

KEVIN BARRY

Fourth Plaintiff

ANTHONY J FORLONG

First Defendant

LUKE ANDREW BOWELL KEMP

Second Defendant

MAFAUFAU SITA (AKA DAVID TUA)

Third Defendant

VAAIGA LELAGA TUIGAMALA

Fourth Defendant

SALLY FERGUSSON CROSS

Counterclaim Defendant

MARK GILL

Counterclaim Defendant

Procedural Posture

Civil High Court / Interlocutory Case Management Pre Trial

Legal Issues

  1. 1 Whether payments should be made from sale proceeds before final determination of parties' financial rights
  2. 2 Whether Mr Tua by his 10 October 2003 notice elected to abandon his claim to have the EMA set aside (election issue)
  3. 3 Whether Tuaman's stay application regarding the EMA counterclaim should succeed

Ratio Decidendi

The court ordered that (1) all remaining substantive issues be heard at a single allocated fixture and heard sequentially with the EMA issue first; (2) except for accountants' fees ordered to be paid as they fall due, no interim payments are to be made from the sale proceeds until the parties' overall financial rights and liabilities are finally determined; (3) Tuaman's stay application against the EMA counterclaim was dismissed because it was premature and the election issue required evidence; (4) Horwath Porter Wigglesworth were to be paid outstanding invoices forthwith (NZ$2,322.56 and proper future invoices); (5) a timetable for filing the counterclaim and defences was imposed...

Court Disposition

Interlocutory orders directing case management: single fixture to hear all remaining substantive issues sequentially with EMA first; timetable imposed; limited payments ordered and other payment applications dismissed; stay applications dismissed.

Orders

  • All remaining substantive issues to be heard at one fixture allocated to Williams J and to be heard sequentially with the EMA issue first
  • Minter Ellison Rudd Watts, as one of the firms holding sale proceeds, is directed to pay forthwith to Horwath Porter Wigglesworth Limited the sum of $2,322.56 pursuant to tax invoice 31053 dated 29 May 2006 and any other invoices they may properly raise for future work