BUNTING v BUCHANAN [2013] NZHC 1921

BUNTING v BUCHANAN [2013] NZHC 1921

Applicants failed to establish a sufficient evidential basis that relevant electronic metadata exists and is necessary to show fabrication or collusion, and the relevance was speculative while the proposed forensic access would be an unjustified intrusion; further, legal advice obtained by the liquidator in performing his statutory duties is privileged to the liquidator rather than to the company, so the applicants' challenge to privilege fails; accordingly the application for particular discovery and the challenge to privilege are dismissed.

Citation
[2013] NZHC 1921
Parties
Applicant (director and Shareholder of Silverdale Developments (2007) Ltd): Anthony Bunting; Applicant (director and Shareholder of Silverdale Developments (2007) Ltd): Gary Raymond Cooper; First Respondent (liquidator): John Buchanan; Second Respondent (former Liquidator): Callum MacDonald
Court
High Court
Jurisdiction
New Zealand
Judgment Date
31 July 2013
Procedural Posture
Application Under the Companies Act 1993 to Terminate Liquidation and for Particular Discovery and Privilege Determination / Interlocutory Application Heard and Determined (application for Particular Discovery and Challenge to Claim of Privilege)
Outcome
Application dismissed
Legal Topics
Liquidation Termination, Particular Discovery of Electronic Data, Legal Professional Privilege, Time Records and Forensic Examination, Fees and Remuneration of Liquidators
Company Law Insolvency Civil Procedure Evidence (privilege) Liquidation Termination Particular Discovery of Electronic Data Legal Professional Privilege Time Records and Forensic Examination +1 more

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Parties

Anthony Bunting

Applicant (director and Shareholder of Silverdale Developments (2007) Ltd)

Gary Raymond Cooper

Applicant (director and Shareholder of Silverdale Developments (2007) Ltd)

John Buchanan

First Respondent (liquidator)

Callum MacDonald

Second Respondent (former Liquidator)

Procedural Posture

Application Under the Companies Act 1993 to Terminate Liquidation and for Particular Discovery and Privilege Determination / Interlocutory Application Heard and Determined (application for Particular Discovery and Challenge to Claim of Privilege)

Legal Issues

  1. 1 Whether there is sufficient basis to order particular discovery of electronic data from the second respondent's computer systems to determine entry dates of time records
  2. 2 Whether communications between the first respondent (liquidator) and his solicitors/counsel in respect of litigation belong to the company or are privileged to the liquidator
  3. 3 Whether there is sufficient evidence of fabrication or collusion concerning time records to justify intrusive forensic examination

Ratio Decidendi

Applicants failed to establish a sufficient evidential basis that relevant electronic metadata exists and is necessary to show fabrication or collusion, and the relevance was speculative while the proposed forensic access would be an unjustified intrusion; further, legal advice obtained by the liquidator in performing his statutory duties is privileged to the liquidator rather than to the company, so the applicants' challenge to privilege fails; accordingly the application for particular discovery and the challenge to privilege are dismissed.

Court Disposition

Application dismissed

Orders

  • Application for particular discovery of electronic data dismissed
  • Challenge to first respondent's claim of legal professional privilege dismissed