MYVIRTUALHOME INTERNATIONAL LTD (IN RECEIVERSHIP AND IN LIQUIDATION) V NGATI TAMA CUSTODIAN TRUSTEE LIMITED HC AK CIV 2009-443-548 (incorporating CIV 2010-404-2197)

MYVIRTUALHOME INTERNATIONAL LTD (IN RECEIVERSHIP AND IN LIQUIDATION) V NGATI TAMA CUSTODIAN TRUSTEE LIMITED HC AK CIV 2009-443-548 (incorporating CIV 2010-404-2197)

Court exercised discretion under High Court Rules r8.26, r8.27 and r8.33 to require URS to file a verified affidavit stating whether defined documents were or are in its control and to make documents available for inspection if in its control, subject to payment of URS's estimate of expenses; required URS to provide an estimate within seven days and permitted staged production upon payment; ordered a verified list to separately identify documents between Mr Martin and legal firms to enable prompt resolution of privilege issues; reserved wider cost questions and directed case management before Lang J on 18 February 2011.

Citation
openlaw-28b15bd8_99db_4411_ab3c_c087bed372bc.pdf
Parties
First Plaintiff: MYVIRTUALHOME INTERNATIONAL LTD (IN RECEIVERSHIP AND IN LIQUIDATION); Second Plaintiff: OPEN GROUP LTD; Third Plaintiff: DAVID WILLIAM PHILLIPS; Fourth Plaintiff: MVH GROUP LIMITED; First Defendant: NGATI TAMA CUSTODIAN TRUSTEE LIMITED; Second Defendant: RODNEY IVAN MARTIN; Third Defendant: GREGORY LLOYD WHITE; Fourth Defendant: THE TE RUNANGA O NGATI TAMA; Fifth Defendant: THE CUSTODIANS AND ELDERS AND TRUSTEES OF THE NGATI TAMA IWI; Sixth Defendant: HOMESOFT GROUP PTY LTD (PREVIOUSLY CALLED BRISBANE SOFTWARE GROUP PTY LTD); Seventh Defendant: HOMESOFT PTY LTD (PREVIOUSLY CALLED BRISBANE SOFTWARE NO1 PTY LTD)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
9 February 2011
Procedural Posture
Commercial Litigation Intellectual Property and Insolvency / Case Management Hearing for Determination of Separate Preliminary Questions and Non Party Discovery Application
Outcome
Application for non-party discovery granted in part under r8.26 with protective cost and privilege procedures; case management adjourned to 18 February 2011; wider costs reserved.
Legal Topics
Ownership of Source Code, Validity of Debentures and Guarantees, Appointment of Receivers, Non Party Discovery Under High Court Rules R8.26, Legal Professional Privilege and Waiver
Intellectual Property Insolvency Civil Procedure Evidence Privilege Ownership of Source Code Validity of Debentures and Guarantees Appointment of Receivers Non Party Discovery Under High Court Rules R8.26 +1 more

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Parties

MYVIRTUALHOME INTERNATIONAL LTD (IN RECEIVERSHIP AND IN LIQUIDATION)

First Plaintiff

OPEN GROUP LTD

Second Plaintiff

DAVID WILLIAM PHILLIPS

Third Plaintiff

MVH GROUP LIMITED

Fourth Plaintiff

NGATI TAMA CUSTODIAN TRUSTEE LIMITED

First Defendant

RODNEY IVAN MARTIN

Second Defendant

GREGORY LLOYD WHITE

Third Defendant

THE TE RUNANGA O NGATI TAMA

Fourth Defendant

THE CUSTODIANS AND ELDERS AND TRUSTEES OF THE NGATI TAMA IWI

Fifth Defendant

HOMESOFT GROUP PTY LTD (PREVIOUSLY CALLED BRISBANE SOFTWARE GROUP PTY LTD)

Sixth Defendant

HOMESOFT PTY LTD (PREVIOUSLY CALLED BRISBANE SOFTWARE NO1 PTY LTD)

Seventh Defendant

Procedural Posture

Commercial Litigation Intellectual Property and Insolvency / Case Management Hearing for Determination of Separate Preliminary Questions and Non Party Discovery Application

Legal Issues

  1. 1 Who owned the Auran jet engine source code as at 24 December 2008?
  2. 2 Whether the two debentures, deed of subordination and guarantee dated 24 December 2008 were lawfully entered into and are valid documents
  3. 3 If receivers of Computer Design Software Pty Ltd were validly appointed under the debenture in favour of Ngati Tama Custodian Trustee Ltd, whether CDS was entitled to terminate the licence to use My Virtual Home/Open Group software following notice and receivership

Ratio Decidendi

Court exercised discretion under High Court Rules r8.26, r8.27 and r8.33 to require URS to file a verified affidavit stating whether defined documents were or are in its control and to make documents available for inspection if in its control, subject to payment of URS's estimate of expenses; required URS to provide an estimate within seven days and permitted staged production upon payment; ordered a verified list to separately identify documents between Mr Martin and legal firms to enable prompt resolution of privilege issues; reserved wider cost questions and directed case management before Lang J on 18 February 2011.

Court Disposition

Application for non-party discovery granted in part under r8.26 with protective cost and privilege procedures; case management adjourned to 18 February 2011; wider costs reserved.

Orders

  • URS New Zealand Limited to file an affidavit stating whether the defined documents are or have been in its control and, if not, when and who has control of them
  • If documents are in URS control, URS to make them available for inspection in accordance with r8.33 after payment of the Estimate of Expenses and Costs