DALTON v HONG [2018] NZHC 2266

DALTON v HONG [2018] NZHC 2266

Court found respondent does possess documents of or relating to Charming Group that have not been produced; liquidators are entitled to those documents under ss261/266 absent proper, particularised claims of privilege or confidentiality; no evidence of ulterior motive or abuse by liquidators and production is not oppressive; respondent must review documents, produce company-owned documents and particularise any privilege claims with sealed copies for court inspection under stipulated timeframes.

Citation
[2018] NZAR 1497
Parties
Applicant Liquidator: Simon Dalton; Applicant Liquidator: Matthew Kemp; Respondent Former Solicitor to Company: Boon Gunn Hong
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 August 2018
Procedural Posture
Application Under Companies Act for Production of Documents (s266) / Judgment on Application for Orders to Produce Documents
Outcome
Application granted in part; ordered review and staged production subject to resolution of privilege/confidentiality claims
Legal Topics
Production of Documents, Legal Professional Privilege, Liquidators' Powers Under Companies Act Ss261 and 266, Reconstitution of Company's Knowledge
Company Law Insolvency Evidence Professional Conduct Production of Documents Legal Professional Privilege Liquidators' Powers Under Companies Act Ss261 and 266 Reconstitution of Company's Knowledge

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Parties

Simon Dalton

Applicant Liquidator

Matthew Kemp

Applicant Liquidator

Boon Gunn Hong

Respondent Former Solicitor to Company

Procedural Posture

Application Under Companies Act for Production of Documents (s266) / Judgment on Application for Orders to Produce Documents

Legal Issues

  1. 1 Whether respondent holds company documents or documents relating to the company's business/accounts/affairs that have not been produced
  2. 2 Whether liquidators must demonstrate particular purpose/relevance to obtain documents
  3. 3 Whether liquidators acted for an ulterior purpose or abused process

Ratio Decidendi

Court found respondent does possess documents of or relating to Charming Group that have not been produced; liquidators are entitled to those documents under ss261/266 absent proper, particularised claims of privilege or confidentiality; no evidence of ulterior motive or abuse by liquidators and production is not oppressive; respondent must review documents, produce company-owned documents and particularise any privilege claims with sealed copies for court inspection under stipulated timeframes.

Court Disposition

Application granted in part; ordered review and staged production subject to resolution of privilege/confidentiality claims

Orders

  • Within 25 working days respondent must review all documents on his computer(s) from 1 January 2010 to 13 December 2017 prepared for or passing between him and Charming Group or its directors
  • Documents located that do not relate to Charming Group or its business/accounts/affairs need not be produced