CAREY & ANOR v SMITH & ORS HC AK CIV 2011-404-5819

CAREY & ANOR v SMITH & ORS HC AK CIV 2011-404-5819

Summary judgment was declined because defendants put forward a plausible, uncontradicted account creating real questions to be tried on pre‑liquidation uplift (so summary disposal inappropriate), and because plaintiffs' post‑liquidation proprietary rights were undermined by ANZ's prior perfected security interest given plaintiffs failed to register their purchase money security interest; the novel contention that liquidation by shareholders/directors amounted to conversion also failed on the facts (shareholders voted for liquidation and liquidation per se did not constitute conduct inconsistent with plaintiffs' contractual rights).

Citation
openlaw-fb638992_4e8e_4763_ac62_f539ab216ff7.pdf
Parties
Plaintiff: Grahame Carey; Plaintiff: Janice Carey; Second Plaintiff: Brumac Enterprises Limited; First Defendant: Bruce James Copeland Smith; Second Defendant: Inga Marianna Dolk; Third Defendant: Eko Garden Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 March 2012
Procedural Posture
Civil – Torts and Proprietary Security Dispute / Application for Summary Judgment (interlocutory)
Outcome
Application for summary judgment declined
Legal Topics
Conversion, Trespass, Security Interest Priority, Purchase Money Security Interest, Summary Judgment Standard, Director Personal Liability
Tort Insolvency Personal Property Security Law Company/directors Law Conversion Trespass Security Interest Priority Purchase Money Security Interest +2 more

Case Brief

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Parties

Grahame Carey

Plaintiff

Janice Carey

Plaintiff

Brumac Enterprises Limited

Second Plaintiff

Bruce James Copeland Smith

First Defendant

Inga Marianna Dolk

Second Defendant

Eko Garden Limited

Third Defendant

Procedural Posture

Civil – Torts and Proprietary Security Dispute / Application for Summary Judgment (interlocutory)

Legal Issues

  1. 1 Whether defendants committed conversion or trespass by uplift and dealing with specified peat pre‑liquidation
  2. 2 Whether post‑liquidation dealings amounted to conversion or trespass given ANZ's prior perfected security
  3. 3 Whether plaintiffs' purchase money security interest in the peat had priority over ANZ's registered security

Ratio Decidendi

Summary judgment was declined because defendants put forward a plausible, uncontradicted account creating real questions to be tried on pre‑liquidation uplift (so summary disposal inappropriate), and because plaintiffs' post‑liquidation proprietary rights were undermined by ANZ's prior perfected security interest given plaintiffs failed to register their purchase money security interest; the novel contention that liquidation by shareholders/directors amounted to conversion also failed on the facts (shareholders voted for liquidation and liquidation per se did not constitute conduct inconsistent with plaintiffs' contractual rights).

Court Disposition

Application for summary judgment declined

Orders

  • Summary judgment declined
  • Costs reserved