JOHN HOWARD ROSS FISK AND CRAIG ALEXANDER SANSON V MARTYN BRUCE NICHOLLS HC WN CIV-2010-485-002242

JOHN HOWARD ROSS FISK AND CRAIG ALEXANDER SANSON V MARTYN BRUCE NICHOLLS HC WN CIV-2010-485-002242

The court held the liquidators' affidavits were, on balance and taking a pragmatic pre‑trial view, properly in reply because they directly addressed matters raised in the defendant's affidavits (including assertions about the company's financial state and expert evidence); the objection under r 9.76 was dismissed and the affidavits were admitted for the substantive hearing.

Citation
openlaw-7fc2f6c1_e0ee_4014_aa40_3674a360cf77.pdf
Parties
Plaintiff (liquidator): John Howard Ross Fisk; Plaintiff (liquidator): Craig Alexander Sanson; Defendant (former Director and Shareholder): Martyn Bruce Nicholls
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 October 2012
Procedural Posture
Application Under Companies Act 1993 Sections 292 and 294(5) to Set Aside Payments; Interlocutory Challenge Under R 9.76 High Court Rules / Interlocutory Hearing on Admissibility of Reply Affidavits; Reserved Judgment; Substantive One‑day Hearing Allocated
Outcome
Application to strike out liquidators' reply affidavits dismissed; affidavits admitted as evidence in reply; substantive application allocated a one‑day hearing
Legal Topics
Voidable Transactions, Recovery of Company Property, Affidavit Admissibility and Reply Evidence, Costs
Company Law Insolvency Civil Procedure Evidence Voidable Transactions Recovery of Company Property Affidavit Admissibility and Reply Evidence Costs

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Parties

John Howard Ross Fisk

Plaintiff (liquidator)

Craig Alexander Sanson

Plaintiff (liquidator)

Martyn Bruce Nicholls

Defendant (former Director and Shareholder)

Procedural Posture

Application Under Companies Act 1993 Sections 292 and 294(5) to Set Aside Payments; Interlocutory Challenge Under R 9.76 High Court Rules / Interlocutory Hearing on Admissibility of Reply Affidavits; Reserved Judgment; Substantive One‑day Hearing Allocated

Legal Issues

  1. 1 Whether affidavits filed by liquidators were properly in reply to the defendant's affidavits
  2. 2 Whether parts of the reply affidavits introduced new material such that they should be struck out under r 9.76
  3. 3 Substantive issue (for later hearing): recoverability of $310,300 under ss 292 and 294(5) of the Companies Act 1993

Ratio Decidendi

The court held the liquidators' affidavits were, on balance and taking a pragmatic pre‑trial view, properly in reply because they directly addressed matters raised in the defendant's affidavits (including assertions about the company's financial state and expert evidence); the objection under r 9.76 was dismissed and the affidavits were admitted for the substantive hearing.

Court Disposition

Application to strike out liquidators' reply affidavits dismissed; affidavits admitted as evidence in reply; substantive application allocated a one‑day hearing

Orders

  • Application under r 9.76 dismissed
  • Substantive application allocated one day reserved