N-TECH LIMITED AND ORS V ABOOTH LIMITED (IN REC.) AND ANOR HC AK CIV 2006-404-003362

N-TECH LIMITED AND ORS V ABOOTH LIMITED (IN REC.) AND ANOR HC AK CIV 2006-404-003362

Documentary record and direct evidence established Russell McVeagh were retained and instructed by Gosling Chapman exclusively; they did not act for the investors generally and did not assume responsibility or fiduciary duties to those investors, so the pleaded sixth and seventh causes against Russell McVeagh cannot succeed and are dismissed on summary judgment; communications to Mr Clews did not waive privilege because he was acting for Gosling Chapman; the fifth cause of action against Gosling Chapman is not wholly struck out (108(b) struck), reliance and causation are factual matters for trial; security for costs ordered $9,000 per specified defendant to completion of discovery.

Citation
openlaw-8de15f4f_636f_4449_95dd_ab7304863754.pdf
Parties
First Plaintiff: N-TECH LIMITED; Second Plaintiff: ST LUCIA INVESTMENTS LIMITED; Third Plaintiff: TOTARA INVESTMENTS LIMITED; First Defendant: ABOOTH LIMITED (IN REC.); Second to One Hundred and Twenty First Defendants: LSL DIGI-TECH DEFENDANTS (GROUP); First Third Parties (partners of Gosling Chapman): R J CHAPMAN; G D C WALKER; T F MCGRATH; Second Third Parties: M V RICHARDSON; T J GOLDFINCH; Third Third Party: RUSSELL MCVEAGH; First Fourth Party: H C VINCENT; Second Fourth Parties: J M K BROWN; P H CASTLE; Third Fourth Party: K A SCHWASS
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 November 2008
Procedural Posture
Civil Third Party and Multi Defendant Contractual/negligence Proceedings / Interlocutory Applications: Summary Judgment, Discovery/privilege, Strike Out and Security for Costs
Outcome
Summary judgment granted for Russell McVeagh against the LSL Digi-Tech defendants' third party claims; privilege challenge dismissed; Gosling Chapman's strike-out application largely dismissed except para 108(b) struck out; security for costs ordered against specified LSL Digi-Tech defendants.
Legal Topics
Summary Judgment, Strike Out, Security for Costs, Waiver of Privilege, Discovery, Retainer/assumption of Responsibility, Fiduciary Duty
Contract Tort Professional Negligence Civil Procedure Evidence (privilege) Fiduciary Obligations Summary Judgment Strike Out +5 more

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Parties

N-TECH LIMITED

First Plaintiff

ST LUCIA INVESTMENTS LIMITED

Second Plaintiff

TOTARA INVESTMENTS LIMITED

Third Plaintiff

ABOOTH LIMITED (IN REC.)

First Defendant

LSL DIGI-TECH DEFENDANTS (GROUP)

Second to One Hundred and Twenty First Defendants

R J CHAPMAN; G D C WALKER; T F MCGRATH

First Third Parties (partners of Gosling Chapman)

M V RICHARDSON; T J GOLDFINCH

Second Third Parties

RUSSELL MCVEAGH

Third Third Party

H C VINCENT

First Fourth Party

J M K BROWN; P H CASTLE

Second Fourth Parties

K A SCHWASS

Third Fourth Party

Procedural Posture

Civil Third Party and Multi Defendant Contractual/negligence Proceedings / Interlocutory Applications: Summary Judgment, Discovery/privilege, Strike Out and Security for Costs

Legal Issues

  1. 1 Whether Russell McVeagh was retained to advise investors generally or only Gosling Chapman
  2. 2 Whether a duty of care arose from any retainer or assumed responsibility to the LSL Digi-Tech defendants
  3. 3 Whether a fiduciary relationship arose between Russell McVeagh and the investors

Ratio Decidendi

Documentary record and direct evidence established Russell McVeagh were retained and instructed by Gosling Chapman exclusively; they did not act for the investors generally and did not assume responsibility or fiduciary duties to those investors, so the pleaded sixth and seventh causes against Russell McVeagh cannot succeed and are dismissed on summary judgment; communications to Mr Clews did not waive privilege because he was acting for Gosling Chapman; the fifth cause of action against Gosling Chapman is not wholly struck out (108(b) struck), reliance and causation are factual matters for trial; security for costs ordered $9,000 per specified defendant to completion of discovery.

Court Disposition

Summary judgment granted for Russell McVeagh against the LSL Digi-Tech defendants' third party claims; privilege challenge dismissed; Gosling Chapman's strike-out application largely dismissed except para 108(b) struck out; security for costs ordered against specified LSL Digi-Tech defendants.

Orders

  • Russell McVeagh to have summary judgment; LSL Digi-Tech defendants' claims against Russell McVeagh dismissed
  • Costs to Russell McVeagh on a 3B basis with allowance for second counsel