MAINZEAL & ORS v YAN & ORS [2018] NZHC 2522

MAINZEAL & ORS v YAN & ORS [2018] NZHC 2522

Judge allowed Mr Burt to give expert evidence because he is suitably qualified, his evidence is relevant to disputed issues under ss 135 and 136, the New Zealand approach permits more than one expert where materially helpful, there was no unfair prejudice or real equality-of-arms problem given the parties' resources and evidence, and any specific inadmissible passages could be reserved and ruled on later; evidence received de bene esse.

Citation
[2018] NZHC 2522
Parties
First Plaintiff: Mainzeal Property and Construction Limited (in liq); Second Plaintiff: King Façade (previously known as Richina Land Ltd) (in liq); Third Plaintiff: Mainzal Group Limited (in liq); Fourth Plaintiff: Andrew James Bethell; Fourth Plaintiff: Brian Mayo-Smith; First Defendant: Richard Ciliang Yan; Second Defendant: Peter Gomm; Third Defendant: Rt Hon Jennifer Mary Shipley; Fourth Defendant: Clive William Charles Tilby; Fifth Defendant: Paul David Collins; Sixth Defendant: Siew May Kwan; Seventh Defendant: Richina Global Real Estate Limited (in liq); Eighth Defendant: Isola Vineyards Limited (previously known as Waiheke Vineyards Limited) (in liq)
Court
High Court
Jurisdiction
New Zealand
Judgment Date
5 October 2018
Procedural Posture
Civil Company Liquidation and Directors' Liability Claims / High Court Trial (third Week) — Admissibility Ruling on Expert Evidence
Outcome
Evidence of Mr Trevor Burt permitted to be led and received de bene esse, subject to specific objections to passages reserved for later ruling
Legal Topics
Reckless Trading, Directors' Duties, S 135 Companies Act 1993, S 136 Companies Act 1993, Admissibility of Expert Evidence, Equality of Arms
Company Law Insolvency Law Evidence Law Civil Procedure Reckless Trading Directors' Duties S 135 Companies Act 1993 S 136 Companies Act 1993 +2 more

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Parties

Mainzeal Property and Construction Limited (in liq)

First Plaintiff

King Façade (previously known as Richina Land Ltd) (in liq)

Second Plaintiff

Mainzal Group Limited (in liq)

Third Plaintiff

Andrew James Bethell

Fourth Plaintiff

Brian Mayo-Smith

Fourth Plaintiff

Richard Ciliang Yan

First Defendant

Peter Gomm

Second Defendant

Rt Hon Jennifer Mary Shipley

Third Defendant

Clive William Charles Tilby

Fourth Defendant

Paul David Collins

Fifth Defendant

Siew May Kwan

Sixth Defendant

Richina Global Real Estate Limited (in liq)

Seventh Defendant

Isola Vineyards Limited (previously known as Waiheke Vineyards Limited) (in liq)

Eighth Defendant

Procedural Posture

Civil Company Liquidation and Directors' Liability Claims / High Court Trial (third Week) — Admissibility Ruling on Expert Evidence

Legal Issues

  1. 1 Whether Mainzeal directors breached s 135 Companies Act 1993 by allowing the company to continue trading beyond 31 January 2011 or 31 July 2011 when alleged technically insolvent
  2. 2 Whether creditors were put in a worse position by the decision to continue trading
  3. 3 Whether directors breached s 136 Companies Act 1993 in entering contracts after the relevant dates and the proper measure of compensation

Ratio Decidendi

Judge allowed Mr Burt to give expert evidence because he is suitably qualified, his evidence is relevant to disputed issues under ss 135 and 136, the New Zealand approach permits more than one expert where materially helpful, there was no unfair prejudice or real equality-of-arms problem given the parties' resources and evidence, and any specific inadmissible passages could be reserved and ruled on later; evidence received de bene esse.

Court Disposition

Evidence of Mr Trevor Burt permitted to be led and received de bene esse, subject to specific objections to passages reserved for later ruling

Orders

  • Mr Burt's evidence admitted de bene esse; objections to specific passages to be determined in the substantive judgment