MCCULLOCH & ORS V QUINN & ORS HC AK CIV-2011-404-003508

MCCULLOCH & ORS V QUINN & ORS HC AK CIV-2011-404-003508

Leave to appeal was declined because applicants failed to identify an important question of law or real detriment sufficient to justify delay; under the Evidence Act without prejudice communications are protected absent a prima facie dishonest purpose or enabling of an offence and the facts did not meet that threshold, particularly as the settlement terms were disclosed and plaintiffs can pursue s174 and fiduciary claims without access to privileged negotiations.

Citation
openlaw-98ee3798_a033_4f50_b9e4_cbb97a804bbe.pdf
Parties
Plaintiffs: DONALD ASPINALL MCCULLOCH, NOLA EVANS AND PETER GLYNEVANS AS TRUSTEES OF TOTARA TRUST; First Defendant: BERNARD PAUL QUINN; Second Defendant: NGATI AWA ASSET HOLDINGS LIMITED; Third Defendant: ALAN PATRICK PETERS; Fourth Defendant: PETERS CAPITAL LIMITED; Fifth Defendant: WILLIAM NORMAN BIRNIE; Sixth Defendant: STEPHEN ROBERT NORRIE; Seventh Defendant: BIRNIE CAPITAL PROPERTY PARTNERSHIP LIMITED; Eighth Defendant: PICASSO NOMINEES LIMITED; Ninth Defendant: WILLIAM NORMAN BIRNIE, STEPHEN ROBERT NORRIE AND RICHARD JAMES O'BRYEN HOARE AS TRUSTEES OF THE PAONEONE SETTLEMENT TRUST NO. 5; Tenth Defendant: BJF PROPERTIES LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
24 September 2012
Procedural Posture
Civil (companies Act Derivative Proceedings) / Application for Leave to Appeal From Interlocutory Judgment (s24 G Judicature Act 1908)
Outcome
Application for leave to appeal declined
Legal Topics
Litigation Privilege, Without Prejudice Communications, Companies Act S168, Leave to Appeal, Derivative Proceedings, Waiver of Privilege, Public Policy Exception
Companies Law Evidence Civil Procedure Privilege Fiduciary Duties Litigation Privilege Without Prejudice Communications Companies Act S168 +4 more

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Parties

DONALD ASPINALL MCCULLOCH, NOLA EVANS AND PETER GLYNEVANS AS TRUSTEES OF TOTARA TRUST

Plaintiffs

BERNARD PAUL QUINN

First Defendant

NGATI AWA ASSET HOLDINGS LIMITED

Second Defendant

ALAN PATRICK PETERS

Third Defendant

PETERS CAPITAL LIMITED

Fourth Defendant

WILLIAM NORMAN BIRNIE

Fifth Defendant

STEPHEN ROBERT NORRIE

Sixth Defendant

BIRNIE CAPITAL PROPERTY PARTNERSHIP LIMITED

Seventh Defendant

PICASSO NOMINEES LIMITED

Eighth Defendant

WILLIAM NORMAN BIRNIE, STEPHEN ROBERT NORRIE AND RICHARD JAMES O'BRYEN HOARE AS TRUSTEES OF THE PAONEONE SETTLEMENT TRUST NO. 5

Ninth Defendant

BJF PROPERTIES LIMITED

Tenth Defendant

Procedural Posture

Civil (companies Act Derivative Proceedings) / Application for Leave to Appeal From Interlocutory Judgment (s24 G Judicature Act 1908)

Legal Issues

  1. 1 Whether s168 Companies Act or public policy defeats litigation privilege in settlement negotiations
  2. 2 Whether Evidence Act 2006 s57/s67 permits disclosure absent prima facie dishonest purpose or enabling of an offence
  3. 3 Whether privilege belonged to company or negotiating parties and could be waived

Ratio Decidendi

Leave to appeal was declined because applicants failed to identify an important question of law or real detriment sufficient to justify delay; under the Evidence Act without prejudice communications are protected absent a prima facie dishonest purpose or enabling of an offence and the facts did not meet that threshold, particularly as the settlement terms were disclosed and plaintiffs can pursue s174 and fiduciary claims without access to privileged negotiations.

Court Disposition

Application for leave to appeal declined

Orders

  • Leave to appeal refused
  • Costs to follow the event; costs reserved if counsel cannot agree