11 Aug 2020
Leave to appeal was granted because the question about the required level of knowledge under s 142W(1) is a question of law, involves matters of general or public importance with wide application to directors and officers, and the scope of accessory liability under s 142W had not previously been determined by the Court of Appeal; the question was certified for appeal.
19 Feb 2020
Although the third parties met the threshold showing reason to believe the defendant may not be able to pay costs, the judge exercised discretion against ordering security because delay in bringing the application, the disruptive effect of ordering security at late stage after close of pleadings and fixture allocation, the proportionality of relief, and the fact the defendant's impecuniosity may be causally linked to the alleged conduct of the third parties outweighed the need for security. Limited tailored discovery was ordered only as to communications between Ewing and Banks about the sale…
16 Apr 2019
Majority: Appeal dismissed and summary judgment for the respondent firm affirmed. The contemporaneous record, including a medical certificate, independent solicitor's certification and detailed solicitor file evidence, rebutted any arguable case of dishonesty or wilful blindness by the firm in preparing and executing the 2010 will; the pleaded case failed to show an actionable breach of fiduciary duty by the attorneys tied to the enduring powers that the firm dishonestly assisted. Further, the appellant lacked sufficient proprietary/beneficiary interest to sustain an accessory liability claim…
20 Apr 2018
The Court allowed the appeal and granted summary judgment for the firm because, on the evidence (notably the unchallenged detailed affidavit of the solicitor Ms Paul and attendant contemporaneous steps: independent advice, medical certificate and statutory declaration), the respondent could not prove the necessary dishonesty element of dishonest assistance by an objective standard; absent dishonesty the claim cannot succeed.
15 Dec 2017
Plaintiff failed to prove on formal proof that any alleged misleading or deceptive representations by the second defendant were causative of the loss claimed; the evidence was too limited and lacked a clear nexus between the asserted misrepresentations about property development and the loss arising from purchase/delivery/condition of motor vehicles, therefore relief is declined.
4 Aug 2017
The strike out and summary judgment applications were dismissed because the pleadings together with affidavit material raised factual disputes about the existence of a fiduciary/constructive trust relationship, a possible breach and wilful blindness/dishonesty by the solicitors that are triable issues; summary disposal was inappropriate. However, on the balance of the security for costs factors the plaintiff likely cannot meet adverse costs and security of NZD 40,000 (two tranches of NZD 20,000) was ordered with costs of the security application to the second defendants on a 2B basis.
7 Jul 2017
Strike-out was ordered because Kimble lacked title to recover the $800,000 paid before incorporation and there was no evidence of valid pre-incorporation contracts or ratification, compounded by the bankruptcy/Official Assignee issue; and because the pleaded allegations of accessory liability against Wouldes failed to meet the required mens rea and fraud-pleading standards and lacked a prima facie evidential foundation under s 43(1)(b) and (d) of the Fair Trading Act.
4 Sept 2015
The Court of Appeal held the Associate Judge erred in striking out the Fair Trading Act claim and declaring it unable to succeed because on the material available the pleading could be amended and there was a reasonably arguable case that the use of the solicitors' trust account and associated communications could have misled investors and that accessory/dishonest assistance allegations were arguable; summary disposal was premature and further evidence was permitted.
11 Mar 2015
The Court granted an extension of time to seek review but declined to order increased security for costs because appellants had paid standard security and High Court costs, there was no evidence of impecuniosity or special circumstances to justify uplift, and the appeal was not shown to be hopeless; respondents must pay costs to appellants on a band A basis and directions were given for further evidence.
15 Jul 2014
The plaintiffs, as creditors, lack standing to bring a claim for dishonest assistance against the defendants because fiduciary duties owed by directors are enforceable by the company or its liquidators and accessory liability cannot exceed the principal's enforceable liability; accordingly the second cause of action for dishonest assistance is struck out and defendants are given summary judgment on that cause.