WALKER v HENDERSON [2017] NZHC 1090

WALKER v HENDERSON [2017] NZHC 1090

The Court found there was a breach of the undertaking given by Walker to the Court because Walker disclosed documents that were personal and irrelevant to the proceedings; the breach constituted contempt. However, because the breach was inadvertent, significant remedial steps were taken promptly by Walker's solicitors, some consequences were beyond Walker's control, and the applicant delayed bringing the contempt application, the Court exercised its discretion to record the finding of contempt but make no further orders and no order as to costs.

Citation
[2017] NZHC 1090
Parties
First Plaintiff: ROBERT BRUCE WALKER; First Plaintiff: JOHN MARSHALL SCUTTER; Second Plaintiff: PROPERTY VENTURES LIMITED (in liquidation); Third Plaintiff: FIVE MILE HOLDINGS LIMITED (in receivership and in liquidation); Fourth Plaintiff: CASHEL VENTURES LIMITED; Fifth Plaintiff: TAY VENTURES LIMITED (in receivership and in liquidation); Sixth Plaintiff: LIVINGSPACE PROPERTIES LIMITED (in receivership and in liquidation); Seventh Plaintiff: BEECHNEST VENTURES LIMITED (in liquidation); Eighth Plaintiff: TUAM VENTURES LIMITED (in receivership and in liquidation); Ninth Plaintiff: CASTLE STREET VENTURES LIMITED (in receivership and in liquidation); Tenth Plaintiff: LICHFIELD VENTURES LIMITED (in receivership and in liquidation); Eleventh Plaintiff: 92 LICHFIELD LIMITED (in receivership and in liquidation); Twelfth Plaintiff: ST ASAPH VENTURES LIMITED (in liquidation); Thirteenth Plaintiff: MONTECRISTO CONSTRUCTION COMPANY LIMITED (in liquidation); First Defendant: AUSTIN JOHN FORBES; Second Defendant: ALISTER SPEDDING JOHNSTON; Third Defendant: GORDON LEWIS HANSEN; Fourth Defendant: DAVID IAN HENDERSON (a bankrupt); Fifth Defendant: ADOLF de ROOS; Sixth Defendant: DANIEL JAMES GODDEN; Seventh Defendant: PwC (sued as a firm); Third Party: VERO LIABILITY INSURANCE
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 May 2017
Procedural Posture
Companies Act 1993 Liquidation Proceedings; Civil Litigation Between Liquidators and Former Directors/auditors / Application by Fourth Defendant for Contempt for Breach of Undertaking (summary Hearing on Contempt)
Outcome
Court finds breach of undertaking amounted to contempt but makes no further orders and no order as to costs
Legal Topics
Liquidation, Undertaking to the Court, Breach of Undertaking, Discovery of Documents, Search Warrant Materials, Privilege, Contempt Proceedings, Remedies and Costs
Company Law Civil Procedure Contempt of Court Privacy Law Evidence and Discovery Liquidation Undertaking to the Court Breach of Undertaking +5 more

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Parties

ROBERT BRUCE WALKER

First Plaintiff

JOHN MARSHALL SCUTTER

First Plaintiff

PROPERTY VENTURES LIMITED (in liquidation)

Second Plaintiff

FIVE MILE HOLDINGS LIMITED (in receivership and in liquidation)

Third Plaintiff

CASHEL VENTURES LIMITED

Fourth Plaintiff

TAY VENTURES LIMITED (in receivership and in liquidation)

Fifth Plaintiff

LIVINGSPACE PROPERTIES LIMITED (in receivership and in liquidation)

Sixth Plaintiff

BEECHNEST VENTURES LIMITED (in liquidation)

Seventh Plaintiff

TUAM VENTURES LIMITED (in receivership and in liquidation)

Eighth Plaintiff

CASTLE STREET VENTURES LIMITED (in receivership and in liquidation)

Ninth Plaintiff

LICHFIELD VENTURES LIMITED (in receivership and in liquidation)

Tenth Plaintiff

92 LICHFIELD LIMITED (in receivership and in liquidation)

Eleventh Plaintiff

ST ASAPH VENTURES LIMITED (in liquidation)

Twelfth Plaintiff

MONTECRISTO CONSTRUCTION COMPANY LIMITED (in liquidation)

Thirteenth Plaintiff

AUSTIN JOHN FORBES

First Defendant

ALISTER SPEDDING JOHNSTON

Second Defendant

GORDON LEWIS HANSEN

Third Defendant

DAVID IAN HENDERSON (a bankrupt)

Fourth Defendant

ADOLF de ROOS

Fifth Defendant

DANIEL JAMES GODDEN

Sixth Defendant

PwC (sued as a firm)

Seventh Defendant

VERO LIABILITY INSURANCE

Third Party

Procedural Posture

Companies Act 1993 Liquidation Proceedings; Civil Litigation Between Liquidators and Former Directors/auditors / Application by Fourth Defendant for Contempt for Breach of Undertaking (summary Hearing on Contempt)

Legal Issues

  1. 1 Whether disclosure of irrelevant/personal material in breach of an undertaking given to the Court constitutes contempt
  2. 2 Which statutory or rule-based mechanism applied (s56C Judicature Act 1908, High Court Rule 7.48, or inherent/common law jurisdiction)
  3. 3 Standard of culpability required for contempt and appropriate remedies

Ratio Decidendi

The Court found there was a breach of the undertaking given by Walker to the Court because Walker disclosed documents that were personal and irrelevant to the proceedings; the breach constituted contempt. However, because the breach was inadvertent, significant remedial steps were taken promptly by Walker's solicitors, some consequences were beyond Walker's control, and the applicant delayed bringing the contempt application, the Court exercised its discretion to record the finding of contempt but make no further orders and no order as to costs.

Court Disposition

Court finds breach of undertaking amounted to contempt but makes no further orders and no order as to costs

Orders

  • Finding: Robert Bruce Walker in contempt for breach of undertaking
  • No further order (no fine or imprisonment)