PRICE V PRICE & HUMPHREYS LANDSCAPING LIMITED AND ORS HC AK CIV 2009-404-3672

PRICE V PRICE & HUMPHREYS LANDSCAPING LIMITED AND ORS HC AK CIV 2009-404-3672 10 September 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2009-404-3672UNDER the Companies Act 1993 IN THE MATTER OF PRICE & HUMPHREYS LANDSCAPING LIMITED BETWEEN SIMON TISDALL PRICE Plaintiff AND PRICE & HUMPHREYS LANDSCAPING LIMITED AND ORS DefendantsCIV 2009-404-4523AND UNDER section 241 of the Companies Act 1993 BETWEEN SCOTT JAMES HUMPHREYS Plaintiff AND PRICE & HUMPHREYS LANDSCAPING LTD Defendant Hearing: 10 September 2009 Counsel: G M Sandelin for Price interests M J Fisher for Humphreys interests Judgment: 10 September 2009(ORAL) JUDGMENT OF HEATH JSolicitors: Minter Ellison Rudd Watts, PO Box 3798, Auckland D B Hickson, PO Box 240, Dominion road, Auckland Counsel: M J Fisher, PO Box 3236, Shortland Street, Auckland[1] There are two proceedings before the Court. The first involves a claim made by Mr Price in relation to the business affairs of Price & Humphreys Landscaping Ltd (PHL), a company in which interests associated with Mr Price and Mr Humphreys respectively, each hold 50% of the shares. [2] There is another company, Price & Humphreys Landscaping Queenstown Ltd, which has the same equality of shareholding, as between the Price and Humphreys' interests. [3] Mr Price and Mr Humphreys have been endeavouring to resolve differences for some time. Mr Price issued proceedings under s 174 of the Companies Act 1993 and alleged also that Mr Humphreys had acted in breach of fiduciary duties owed by him to PHL. Those proceedings were defended by Mr Humphreys and Mr Beca, who is a trustee of a trust associated with Mr Humphreys that holds some of the share capital, on behalf of Mr Humphreys' interests. [4] The proceeding was set down before me today on an interim injunction application made by Mr Price. Mr Sandelin and Mr Fisher advised the Court yesterday that settlement has been achieved. This morning they have tendered to the Court a copy of a Deed of Agreement dated 9 September 2009, which resolves outstanding issues among the parties to this proceeding. [5] Counsel seek a Tomlin order so that the proceeding can be stayed with leave reserved to apply to enforce any of the terms of the settlement agreement. The nature of a Tomlin order is explained in Practice Note [1927] WN 290 and discussed in Horizon Technologies International Ltd v Lucky Wealth Consultants Ltd [1992] 1 All ER 469 (PC). [6] The second proceeding is an application by Mr Humphreys to have PHL put into liquidation. Counsel initially sought for that proceeding also to be stayed, on the same Tomlin basis.[7] After discussing that issue with counsel, it has been agreed that it is preferable to dismiss the liquidation application to avoid the possibility of any relation back problems arising in the future should unexpected events occur. [8] On that basis, I make the following orders: a) In CIV 2009-404-3672, all proceedings shall be stayed in accordance with the terms set out in the Deed of Agreement of 9 September 2009, a copy of which shall be annexed to the order. Leave is reserved to any party to apply to the Court to enforce the terms of the agreement without the need to commence a new proceeding. No order as to costs. b) In relation to the liquidation proceeding (CIV 2009-404-4523) the application is dismissed, with no order as to costs. [9] I congratulate counsel and the parties on reaching a sensible compromise, in relation to the issues before the Court. ____________________________ P R Heath J