KEREKES KOUNTING HOUSE LIMITED V REUBEN'S WATER TAXI LIMITED (IN RECEIVERSHIP AND LIQUIDATION) HC AK CIV-2008-404-001491

KEREKES KOUNTING HOUSE LIMITED V REUBEN'S WATER TAXI LIMITED (IN RECEIVERSHIP AND LIQUIDATION) HC AK CIV-2008-404-001491 2 March 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2008-404-001491BETWEEN KEREKES KOUNTING HOUSE LIMITED Plaintiff AND REUBEN'S WATER TAXI LIMITED (IN RECEIVERSHIP AND LIQUIDATION) Defendant Hearing: 2 March 2009 Appearances: Mr Grant and Mr Khov liquidators in person Mr D Grove for respondents Judgment: 2 March 2009ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUESolicitors:Damien Grant and Steven Khov, Liquidators, Unit K1, 75 Corinthian Drive, Albany, Auckland Foy & Halse, Auckland (Counsel : Mr Grove , Barrister, Auckland )[1] The liquidators objective here is to examine various people who they consider can give them information about Reuben's Water Taxi Limited (in Receivership and Liquidation). Before they take that step though they want the Court to exercise the jurisdiction it has under s 261 Companies Act 1993 to direct that documents be provided to the liquidators. The documents are documents that are in the possession of the solicitors previously acting for Reuben's Water Taxi, officers and former officers of the company and the current receiver of the company, Mr Wahlstrom. [2] After a useful discussion between the liquidators and Mr Grove for the respondents, Mr Grove sensibly conceded that documents relating to the business 'of the company in [the] possession' of the various people concerned need to be produced within the terms of s 261. The liquidators for their part accept that copies will suffice in the first instance. Mr Grove also sensibly accepts that so far as the lawyers are concerned there is no ground of legal professional privilege that the lawyers can maintain against the liquidators in respect of communications by the company for the purpose of obtaining legal advice. Mr Grove, though, makes the point, that in those instances where the solicitors acted for other persons in their personal capacity, they may be able to establish opposition to the orders under s 261 based upon legal professional privilege. [3] The liquidators have had some difficulty, understandably, in formulating exactly what documents it is that they want against the various people named in the notice of interlocutory application. I understand that they now seek orders to produce the documents as defined in s 261(1). Therefore instead of the orders sought under sub paragraph '(b)' of their application with respect to each person or entity named, they seek an order that the person in question 'deliver to the liquidator such books, records, or documents of the company in that person's possession or under that person's control' as the liquidator requires. Further the liquidator requires that all company documents be provided. The time within which the various respondents are to comply with the order is 21 days from today's date - that is by 23 March 2009. To make it clear beyond any argument these orders are made in respect of all of the persons named in paragraphs 1 – 6 of the Notice of Application.[4] The documents are to made available with the exception of the Wahlstrom documents which are in a separate category, to be picked up from the offices of Foy and Halse no later than the date set out above. [5] So far as the documents held by the receiver Mr Wahlstrom are concerned, the liquidators say that the most practical way of dealing with these would be for them to inspect the documents that Mr Wahlstrom has and select what of those documents they want copies of. Mr Grant has said that they may not need anymore than perhaps a 100 documents out of the documents held. Mr Wahlstrom no doubt will receive a copy of this Judgment from Mr Grove and therefore will expect to be approached by the liquidators to suggest this course of action. If he is not agreeable to it then the alternative will be for him to provide copies of all of the documents in his possession relating to the company with the liquidators paying a photocopying charge for same. [6] Whichever way discovery is dealt with, if the parties are not able to agree on an appropriate photocopying rate then it is to be settled by the Registrar at the High Court at Auckland. Such rate should reflect standard market costs for commercial photocopying charges in the Auckland central business district area. [7] The next stage in the liquidators application involves interviewing each of the respondents. The interviews are to take place in the period of three weeks following the last date for provision of the documents that I have set out in the orders above. A separate arrangement will be made for interview of Mr Halse which is that he is to be interviewed not later than five weeks after the date for provision of documents, 23 March 2009. [8] All of the named respondents are to submit to examination on oath by the liquidators. The parties are to agree on venue at which the examinations are to take place not later than 18 March 2009 and if they have not agreed the matter can be referred to me at 2.15 p.m. that day for orders to be made by way of possibilities. I note the following:a) The liquidators are based at Albany and the interviews could take place at their offices or alternatively they would be prepared to arrange the interviews at the premises of solicitors in Auckland central; b) Mr Grove notes that the parents of Mr Reuben Zylstra, that is Miriam Zylstra and George Zylstra, are elderly people and should be inconvenienced as little as possible. Mr Grove suggests it might be easier for them to go to a venue in Warkworth for examination. [9] However if the parties can use their good sense in this area I am sure mutually convenient arrangements can be made. As a fallback I will make orders should any be required. [10] Mr Grove has agreed to orders for interview etc on the assumption that the people concerned will be available for interview during the time period that I have set out in this minute. In case of unexpected eventualities, such as any of the respondents being overseas, leave is granted to him to apply for a variation to these directions. _____________ J.P. Doogue Associate Judge