100 INVESTMENTS LTD v WALKER [2023] NZHC 3732

MC File 1, the Liquidator Documents held by Walker and Scutter, and documents held by agents of those former liquidators are not within the control of the Whitley parties because control requires a presently enforceable right to possession and the Companies Act provisions relied upon do not confer an unqualified present right; accordingly LPF and SPF's applications for further discovery against the Whitley parties fail. Conversely, targeted discovery orders sought by Walker (and specified categories relating to communications and funding) are proportionate and granted. A litigation guardian is not a party and is not obliged to undertake a wholesale review of voluminous documents in the...

Citation: [2023] NZHC 3732
Parties: First Plaintiff (civ 2019 404 1160); First Defendant (civ 2022 404 274): 100 INVESTMENTS LTD; Second Plaintiff (civ 2019 404 1160); Second Defendant (civ 2022 404 274): FTG SECURITIES LTD; Third Plaintiff (civ 2019 404 1160); Third Defendant (civ 2022 404 274): RFD FINANCE LTD; Fourth Plaintiff (civ 2019 404 1160); Fourth Defendant (civ 2022 404 274): TOMANOVICH HOLDINGS LTD; First Defendant (civ 2019 404 1160); Fifth Defendant (civ 2022 404 274); Former Liquidator of Property Ventures Ltd: ROBERT BRUCE WALKER; Second Defendant (civ 2019 404 1160): JOHN MARSHALL SCUTTER; Third Defendant (civ 2019 404 1160); Seventh Defendant (civ 2022 404 274): LPF GROUP LTD; Fourth Defendant (civ 2019 404 1160); Eighth Defendant (civ 2022 404 274): SPF NO 10 LTD (IN LIQUIDATION); First Plaintiff (civ 2022 404 274); Replacement Liquidator of Property Ventures Ltd and Related Companies; Fifth to Seventeenth Defendant (civ 2019 404 1160): KEVIN JOHN WHITLEY; Sixth Defendant (civ 2019 404 1160); Second Plaintiff (civ 2022 404 274): PROPERTY VENTURES LTD (IN LIQUIDATION)
Court: High Court
Jurisdiction: New Zealand
Judgment Date: 15 December 2023
Procedural Posture: Consolidated Civil Proceedings Concerning Insolvency, Liquidator Actions, Discovery and Admissibility Challenges / Interlocutory (pre Trial Applications for Discovery, Directions and Admissibility); Four Week Trial Listed 26 February 2024
Outcome: Applications by LPF and SPF for further discovery against the Whitley parties dismissed. Walker's discovery application granted in part (specified categories). Directions given that the litigation guardian (D J Cooper KC) is not a party and has no obligation to undertake wholesale review of documents within Walker's...
Legal Topics: Discovery and Control of Documents, Liquidator Statutory Duties and Obligations, Litigation Funding Agreements, Privilege and Without Prejudice Communications, Admissibility of Lay and Expert Evidence, Obligations of Litigation Guardians

Company Law Insolvency Law Civil Procedure Evidence Law Trusts and Fiduciary Duties Discovery and Control of Documents Liquidator Statutory Duties and Obligations Litigation Funding Agreements +3 more

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Full judgment text Legal principles 5 Authorities cited 13 Party arguments 2 Amounts and remedies 3

Parties

100 INVESTMENTS LTD

First Plaintiff (civ 2019 404 1160); First Defendant (civ 2022 404 274)

FTG SECURITIES LTD

Second Plaintiff (civ 2019 404 1160); Second Defendant (civ 2022 404 274)

RFD FINANCE LTD

Third Plaintiff (civ 2019 404 1160); Third Defendant (civ 2022 404 274)

TOMANOVICH HOLDINGS LTD

Fourth Plaintiff (civ 2019 404 1160); Fourth Defendant (civ 2022 404 274)

ROBERT BRUCE WALKER

First Defendant (civ 2019 404 1160); Fifth Defendant (civ 2022 404 274); Former Liquidator of Property Ventures Ltd

JOHN MARSHALL SCUTTER

Second Defendant (civ 2019 404 1160)

LPF GROUP LTD

Third Defendant (civ 2019 404 1160); Seventh Defendant (civ 2022 404 274)

SPF NO 10 LTD (IN LIQUIDATION)

Fourth Defendant (civ 2019 404 1160); Eighth Defendant (civ 2022 404 274)

KEVIN JOHN WHITLEY

First Plaintiff (civ 2022 404 274); Replacement Liquidator of Property Ventures Ltd and Related Companies; Fifth to Seventeenth Defendant (civ 2019 404 1160)

PROPERTY VENTURES LTD (IN LIQUIDATION)

Sixth Defendant (civ 2019 404 1160); Second Plaintiff (civ 2022 404 274)

Procedural Posture

Consolidated Civil Proceedings Concerning Insolvency, Liquidator Actions, Discovery and Admissibility Challenges / Interlocutory (pre Trial Applications for Discovery, Directions and Admissibility); Four Week Trial Listed 26 February 2024

Legal Issues

1 Whether MC File 1 held by Meredith Connell is within the control of the Whitley parties for discovery purposes
2 Whether documents held by former liquidators (Walker and Scutter) are within control of replacement liquidator under Companies Act ss261/266/283A/284
3 Whether documents held by agents or solicitors of former liquidators are within control

Ratio Decidendi

Court Disposition

Applications by LPF and SPF for further discovery against the Whitley parties dismissed. Walker's discovery application granted in part (specified categories). Directions given that the litigation guardian (D J Cooper KC) is not a party and has no obligation to undertake wholesale review of documents within Walker's...

Orders

Decline LPF and SPF applications for further discovery against the Whitley parties (MC File 1, Liquidator Documents, Agency Documents).
Order that the plaintiffs in both proceedings provide further discovery in the categories sought by Mr Cooper (see judgment paras 53–55) including communications re appointment/funding/claims, documents recording or relating to payments/funding and documents relating to engagement of Mr Henderson; privilege claims...