MCCULLAGH AND LAWRENCE v ROBT. JONES HOLDINGS LIMITED [2015] NZHC 1462

MCCULLAGH AND LAWRENCE v ROBT. JONES HOLDINGS LIMITED [2015] NZHC 1462

Particular discovery under r8.19 was refused because the liquidators' affidavits of documents were adequate and the additional classes sought by the respondent were irrelevant or disproportionate given the established legal position that payments routed through Columbus/MSH were payments by Northern Crest under s292(3) and given the respondents' own contemporaneous conduct and court dealings established insolvency for the restricted period under s292(6); claims of privilege over solicitor communications were not waived under Evidence Act s65(2) or s65(3)(a) by partial disclosure, so privilege claims stand.

Citation
(2015) 22 PRNZ 615
Parties
Applicant (liquidator): Anthony John McCullagh; Applicant (liquidator): Stephen Mark Lawrence; Respondent (creditor): Robt. Jones Holdings Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
26 June 2015
Procedural Posture
Voidable Transaction Proceeding in Company Liquidation / Interlocutory Application for Particular Discovery Under R 8.19 and to Set Aside Claims of Privilege (application Dismissed)
Outcome
Application for further particular discovery and application to set aside privilege dismissed.
Legal Topics
Voidable Transactions (s292 Et Seq), Discovery (r 8.19, R 8.25), Privilege and Waiver (evidence Act Ss54, 56, 65), Insolvency/ability to Pay, Restricted Period Under S292(6)
Companies Law Insolvency Law Civil Procedure Evidence Law Voidable Transactions (s292 Et Seq) Discovery (r 8.19, R 8.25) Privilege and Waiver (evidence Act Ss54,56,65) Insolvency/ability to Pay +1 more

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Parties

Anthony John McCullagh

Applicant (liquidator)

Stephen Mark Lawrence

Applicant (liquidator)

Robt. Jones Holdings Limited

Respondent (creditor)

Procedural Posture

Voidable Transaction Proceeding in Company Liquidation / Interlocutory Application for Particular Discovery Under R 8.19 and to Set Aside Claims of Privilege (application Dismissed)

Legal Issues

  1. 1 Whether further particular discovery under r 8.19 was necessary despite affidavits of documents
  2. 2 Whether the liquidators waived legal professional privilege in documents by partial disclosure (Evidence Act s65(2) and s65(3)(a))
  3. 3 Whether payments received by respondent were payments by the company under s292(3) even though paid by third parties (Columbus/MSH)

Ratio Decidendi

Particular discovery under r8.19 was refused because the liquidators' affidavits of documents were adequate and the additional classes sought by the respondent were irrelevant or disproportionate given the established legal position that payments routed through Columbus/MSH were payments by Northern Crest under s292(3) and given the respondents' own contemporaneous conduct and court dealings established insolvency for the restricted period under s292(6); claims of privilege over solicitor communications were not waived under Evidence Act s65(2) or s65(3)(a) by partial disclosure, so privilege claims stand.

Court Disposition

Application for further particular discovery and application to set aside privilege dismissed.

Orders

  • Application for particular discovery and challenge to privilege dismissed
  • Respondent to file and serve affidavits in opposition by 14 August 2015