LDC FINANCE LIMITED v DAVID GORDON MILLER, KEVIN ELLIOTT, CHRISTOPHER JOHN HARDIMAN AND JOHN CHARLES JANETTO [2015] NZHC 3165

LDC FINANCE LIMITED v DAVID GORDON MILLER, KEVIN ELLIOTT, CHRISTOPHER JOHN HARDIMAN AND JOHN CHARLES JANETTO [2015] NZHC 3165

The Court held that plaintiffs may proceed with their chosen method of a single first trial on all causes of action in the fourth amended statement of claim (except the cause commencing at paragraph 279), because the defendants failed to demonstrate manifest prejudice from representative proof; the plaintiffs bear the risk that their method may fail to establish reliance under Boyd Knight and may appeal if necessary.

Citation
[2015] NZHC 3165
Parties
First Plaintiff: LDC Finance Limited; Second Plaintiff (trustee): Janet Verena Wilson; Second Plaintiff (trustee): Kayedenise Whalan; Second Plaintiff (trustee): Angus Iain McNeill; Second Plaintiff (trustee): Gretel McNeill; Fourth Plaintiff: Fawdan Subdivisions Limited; Fourth Plaintiff (trustee): Roland Lloyd Fawcett; Fourth Plaintiff (trustee): Julie Bethany Morton; Fourth Plaintiff (trustee): Paulette Fawcett; Sixth Plaintiff (interim Liquidator): Iain Bruce Shephard; Sixth Plaintiff (interim Liquidator): Heathleslie Gair; First Defendant (director): David Gordon Miller; First Defendant (director): Kevin Elliott; First Defendant (director): Christopher John Hardiman; First Defendant (director): John Charles Janetto; Second Defendant (accountant): Carran Miller Strawbridge Limited; Third Defendant (trustee): Perpetual Trust Limited; Fourth Defendant (auditor): Sherwin Chan Walshe
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 December 2015
Procedural Posture
Civil Representative Action Arising From Failed Finance Company (investor Claims) / Pre Trial: Application Concerning Mode of Trial Decided (trial Management)
Outcome
Application by third defendant (supported by first and fourth defendants) to direct an alternative mode of trial refused; plaintiffs permitted to proceed with single first trial of pleaded causes except cause commencing at paragraph 279; costs reserved.
Legal Topics
Mode of Trial, Representative Proceedings, Reliance on Audit Reports, Auditor Liability, Trustee Duties, Limitation
Civil Procedure Trusts Securities Regulation Company Law Professional Negligence Representative Proceedings Mode of Trial Reliance on Audit Reports +3 more

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 3 Authorities cited 6 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Parties

LDC Finance Limited

First Plaintiff

Janet Verena Wilson

Second Plaintiff (trustee)

Kayedenise Whalan

Second Plaintiff (trustee)

Angus Iain McNeill

Second Plaintiff (trustee)

Gretel McNeill

Second Plaintiff (trustee)

Fawdan Subdivisions Limited

Fourth Plaintiff

Roland Lloyd Fawcett

Fourth Plaintiff (trustee)

Julie Bethany Morton

Fourth Plaintiff (trustee)

Paulette Fawcett

Fourth Plaintiff (trustee)

Iain Bruce Shephard

Sixth Plaintiff (interim Liquidator)

Heathleslie Gair

Sixth Plaintiff (interim Liquidator)

David Gordon Miller

First Defendant (director)

Kevin Elliott

First Defendant (director)

Christopher John Hardiman

First Defendant (director)

John Charles Janetto

First Defendant (director)

Carran Miller Strawbridge Limited

Second Defendant (accountant)

Perpetual Trust Limited

Third Defendant (trustee)

Sherwin Chan Walshe

Fourth Defendant (auditor)

Procedural Posture

Civil Representative Action Arising From Failed Finance Company (investor Claims) / Pre Trial: Application Concerning Mode of Trial Decided (trial Management)

Legal Issues

  1. 1 Whether the representative plaintiffs may try all claims in a single trial rather than a staged trial
  2. 2 Whether reliance by individual investors can be proven by representative evidence or requires individual evidence
  3. 3 Whether defendants would be prejudiced by the plaintiffs' proposed mode of trial

Ratio Decidendi

The Court held that plaintiffs may proceed with their chosen method of a single first trial on all causes of action in the fourth amended statement of claim (except the cause commencing at paragraph 279), because the defendants failed to demonstrate manifest prejudice from representative proof; the plaintiffs bear the risk that their method may fail to establish reliance under Boyd Knight and may appeal if necessary.

Court Disposition

Application by third defendant (supported by first and fourth defendants) to direct an alternative mode of trial refused; plaintiffs permitted to proceed with single first trial of pleaded causes except cause commencing at paragraph 279; costs reserved.

Orders

  • First trial to proceed of all plaintiffs' causes of action in the fourth amended statement of claim except the cause commencing at paragraph 279
  • Right of plaintiffs to amend preserved