PERPETUAL TRUST LIMITED V FINANCIAL MARKETS AUTHORITY COA CA371/2012
By consent further evidence was admitted; the appeal was dismissed; the court exercised its supervisory power to discharge and vary the confidentiality order to permit immediate limited disclosure to unit holders and to set a date for publication of judgments while preserving the High Court file search restriction;...
Source-derived case information.
- Citation
- COA CA371/2012
- Parties
- Appellant: Perpetual Trust Limited; Respondent: Financial Markets Authority; Intervenor: Trustees Executors Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 4 July 2012
- Procedural Posture
- Appeal / Oral Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Confidentiality Orders, Publication, Disclosure to Unit Holders, Interlocutory Relief, Costs
Source-derived case record
Summary, issues, holding and outcome
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Parties
Perpetual Trust Limited
Appellant
Financial Markets Authority
Respondent
Trustees Executors Limited
Intervenor
Procedural Posture
Appeal / Oral Judgment
Legal Issues
- 1 Whether further evidence should be admitted
- 2 Whether confidentiality orders should be discharged or varied
- 3 Whether publication of judgments and release of information to unit holders should be permitted
Ratio Decidendi
By consent further evidence was admitted; the appeal was dismissed; the court exercised its supervisory power to discharge and vary the confidentiality order to permit immediate limited disclosure to unit holders and to set a date for publication of judgments while preserving the High Court file search restriction; costs were awarded personally against the appellant with an uplift and certification for two counsel.
Court Disposition
appeal dismissed
Orders
- Application to adduce further evidence granted by consent
- Confidentiality order made by Ellis J on 24 May 2012 discharged as from midday, Thursday 5 July 2012
Full Case Text
Judgment text and source record
1 paragraphs
PERPETUAL TRUST LIMITED V FINANCIAL MARKETS AUTHORITY COA CA371/2012 [4 July 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA371/2012[2012] NZCA 298BETWEEN PERPETUAL TRUST LIMITEDAppellantAND FINANCIAL MARKETS AUTHORITYRespondentAND TRUSTEES EXECUTORS LIMITEDIntervenorHearing: 4 July 2012Court: Glazebrook, Ellen France and Stevens JJCounsel: J R Billington QC and S E Fitzgerald for AppellantH B Rennie QC and B J Moffat for RespondentC M Stevens and F M Russell for IntervenorJudgment: 4 July 2012 at 4.45 pmORAL JUDGMENT OF THE COURTA By consent, we grant the appellant's application to adduce furtherevidence.B We dismiss the appeal, subject to the following.C The confidentiality order made by Ellis J on 24 May 2012 is discharged as from midday, Thursday 5 July 2012.D In the meantime, the confidentiality order made by Ellis J is varied to allow the appellant to release a statement to unit holders immediately if it wishes to do so. The respondent and the intervenor may comment on that statement publicly, again if they wish to do so.E The order made by Heath J on 14 June 2012 that the High Court file not be searched, copied or inspected without leave of a Judge of the HighCourt, remains intact. The order is extended to this Court's file on thisappeal.F Heath J's judgment of 26 June 2012 may be published in its entirety on or after midday, Thursday 5 July 2012.G This Court's judgment may also be published in its entirety on or aftermidday, Thursday 5 July 2012.H The appellant (personally and not in its capacity as trustee) must pay the respondent and the intervenor costs for a complex appeal on a Band B basis plus usual disbursements. We certify for:(a) an uplift of 50% in terms of r 53C(1)(b) of the Court of Appeal (Civil) Rules 2005; and(b) two counsel.REASONS OF THE COURT(Given by Glazebrook J)[1] Reasons to follow.[2] We comment at this point that Heath J's decision is an interlocutory decisionfocused on the issue of confidentiality and that further information may arise in the substantive proceeding and/or in other proceedings that are relevant to the broader matters discussed in his judgment.[3] We also note that it was conceded before us today by the appellant that it has an obligation immediately to release information to unit holders about the fact of Torchlight loan, the total outstanding compared to the total value of the Fund, together with any relevant history of the transaction. It also accepted that the Financial Markets Authority should be free to make any public comment on the Torchlight issue in accordance with its statutory obligations.Solicitors:Russell McVeagh, Wellington for AppellantFinancial Markets Authority, Wellington for RespondentDLA Phillips Fox, Wellington for Intervenor