CONCRETE STRUCTURES LTD v NMHB LTD (IN LIQ) [2020] NZHC 1218

CONCRETE STRUCTURES LTD v NMHB LTD (IN LIQ) [2020] NZHC 1218

The Court held that s261(2)(f) together with s266(2)(b) permit the Court to order a solicitor who has acted for the company to produce documents in that solicitor's possession or control even if those documents were generated while acting for a third‑party client, provided the documents relate to the affairs of the company; trust account records in issue are not privileged under s393 and production ordered where liquidators demonstrated reasonable necessity and the request was narrow and proportionate.

Citation
[2020] NZHC 1218
Parties
Plaintiff: Concrete Structures Limited; Defendant/applicant: NMHB Limited (in liquidation); Respondent (solicitors): Dyer Whitechurch
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 June 2020
Procedural Posture
Companies Act S261 and S266 Application in Liquidation / Application for Production of Documents; Judgment on Application Delivered 4 June 2020
Outcome
Application granted in part
Legal Topics
Liquidator Powers Under S261 and S266, Production of Trust Account Documents, Solicitor Third‑party Records, Equitable Tracing, Exercise of Judicial Discretion
Company Law Insolvency Civil Procedure Evidence Legal Professional Privilege Liquidator Powers Under S261 and S266 Production of Trust Account Documents Solicitor Third‑party Records +2 more

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Parties

Concrete Structures Limited

Plaintiff

NMHB Limited (in liquidation)

Defendant/applicant

Dyer Whitechurch

Respondent (solicitors)

Procedural Posture

Companies Act S261 and S266 Application in Liquidation / Application for Production of Documents; Judgment on Application Delivered 4 June 2020

Legal Issues

  1. 1 Whether the Court has jurisdiction under ss261 and 266 to order a former solicitor to produce trust account documents generated while acting for a third party
  2. 2 Whether the trust account documents are subject to legal professional privilege or are the property of a third party
  3. 3 Whether the Court should in its discretion order production given alternative remedies and third‑party interests

Ratio Decidendi

The Court held that s261(2)(f) together with s266(2)(b) permit the Court to order a solicitor who has acted for the company to produce documents in that solicitor's possession or control even if those documents were generated while acting for a third‑party client, provided the documents relate to the affairs of the company; trust account records in issue are not privileged under s393 and production ordered where liquidators demonstrated reasonable necessity and the request was narrow and proportionate.

Court Disposition

Application granted in part

Orders

  • Respondent Dyer Whitechurch to produce within 14 days any record or document recording or relating to the receipting of funds received from or on behalf of formerly NMHB Ltd (in liquidation) and the transfer or payment of those funds within or from the trust account of Dyer Whitechurch
  • Preliminary view that respondent Dyer Whitechurch pay costs to applicant liquidators on a 2B basis plus disbursements; if costs not agreed brief submissions (no more than three pages) to be filed and served within 14 days