McCulloch v Quinn [2012] NZHC 16 (23 January 2012)

Last Updated: 16 February 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003508 [2012] NZHC 16

BETWEEN DONALD ASPINALL MCCULLOCH, NOLA EVANS AND PETER GLYN EVANS AS TRUSTEES OF TOTARA TRUST

Plaintiffs

AND BERNARD PAUL QUINN First Defendant

AND NGATI AWA ASSET HOLDINGS LIMITED

Second Defendant

AND ALAN PATRICK PETERS Third Defendant

AND PETERS CAPITAL LIMITED Fourth Defendant

AND WILLIAM NORMAN BIRNIE Fifth Defendant

AND STEPHEN ROBERT NORRIE Sixth Defendant

AND BIRNIE CAPITAL PROPERTY PARTNERSHIP LIMITED Seventh Defendant

AND PICASSO NOMINEES LIMITED Eighth Defendant

AND WILLIAM NORMAN BIRNIE, STEPHEN ROBERT NORRIE AND RICHARD JAMES O'BRYEN HOARE AS

TRUSTEES OF THE PAONEONE SETTLEMENT TRUST NO. 5

Ninth Defendant

AND BJF PROPERTIES LIMITED Tenth Defendant

MCCULLOCH & ORS AS TRUSTEES OF TOTARA TRUST V QUINN HC AK CIV-2011-404-003508 23

January 2012

Hearing: 16 December 2011

Appearances: G Turkington and K L J Simcock for Plaintiffs

Z Kennedy and M Pascariu for First, Second, Third and Fourth

Defendants

M O'Brien for Fifth to Ninth Defendants

N W Woods for Gough Capital Ltd

Judgment: 23 January 2012 at 3:00 PM

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 23 January 2012 at 3.00 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Izard Weston, Wellington

Lee Salmon Long, Auckland (C Wilson) Minter Ellison Rudd Watts, Auckland

Rice Craig, Papakura, Auckland

Bell Gully, Wellington

Copy to: G L Turkington, Wellington

Introduction

[1] The plaintiffs seek relief against the defendants under s 174 of the Companies Act 1993. The first, second, third and fourth defendants have applied to strike out the claim against them on the grounds it does not disclose any reasonably arguable cause of action.

Background

[2] In November 2007 a number of investors, including the plaintiffs, agreed to invest in various property projects owned and controlled by the fifth defendant (Mr Birnie). Mr Birnie owned or controlled the projects either personally or through related parties, namely the eighth defendant (Picasso) and ninth defendant (Paoneone). The seventh defendant, (BCPP) was incorporated as the vehicle for the investments. Sixteen million Group A shares (48.1% of the total shareholding) were issued to Paoneone for the Birnie interests. Seventeen million, two hundred and fifty thousand Group B shares (the remaining 51.9% of the total shareholding) were issued to outside investors. The second defendant (Ngati Awa), a company controlled by the first defendant Mr Quinn and the fourth defendant (Peters Capital), a company controlled by the third defendant Mr Peters, took up 6,000,000 shares between them. The current plaintiffs were issued five million shares in BCPP. The remaining shares were held by the late Alan Hubbard and Mrs Hubbard (5,000,000) and Gough Capital Limited (1,250,000).

[3] BCPP was structured so that the Group A and B shareholders could each appoint a maximum of four directors to the Board. A valid resolution required a vote of the majority of directors. Importantly, the resolution also had to be supported by at least one director from each shareholding group.

[4] In 2008 BCPP agreed to purchase a number of property projects from Mr Birnie, Picasso and Paoneone. One of the projects related to a development known as the ―Lion Rock‖. BCPP paid $19 million for the Lion Rock project. Eight million dollars was provided in cash from the investors’ subscriptions in BCPP. The balance was satisfied by the issue of 11 million one dollar shares in BCPP to

Paoneone. The purchase was conditional. The sale and purchase agreement provided that if the purchase did not become unconditional BCPP had the ability to unwind the purchase of the Lion Rock project, (the put option). If BCPP exercised the put option, Mr Birnie, Picasso and Paoneone were required to accept a transfer back of the Lion Rock assets and would become liable to pay BCPP 19 million dollars.

[5] The property market deteriorated during 2009. BCPP became entitled to require Mr Birnie and his interests to accept the transfer back of the Lion Rock project. Mr Quinn and Mr Peters put a formal resolution to the board on 31 July

2009 that BCPP exercise the put option. At the relevant time the Group A directors were Mr Birnie and the sixth defendant Mr Norrie. The Group B directors were Mr Evans, (the third-named plaintiff), Mr Gardiner (for whom Mr Quinn was an alternate) and Mr Peters. Mr McCulloch, the first-named plaintiff, was appointed as the independent chairman of BCPP’s board. Mr Birnie and Mr Norrie opposed the resolution. As a result the resolution was defeated.

[6] Despite the fact the resolution was defeated, in October 2009 Mr Quinn and Mr Peters purported to give notice on behalf of BCPP to the Lion Rock vendors of the exercise of the put option. They did so without the support of either Mr Birnie or Mr Norrie. Further resolutions were put to the board seeking to gain support for the exercise of the put option. At no time were the resolutions supported by Mr Norrie or Mr Birnie.

[7] In December 2009 Messrs Quinn and Peters sought leave under s 165 of the Companies Act 1993 (the Act) to bring proceedings on behalf of BCPP against Messrs Birnie and Norrie for breach of their duties to BCPP as directors and against Mr Birnie, Paoneone and Picasso in relation to their liability under the put option. Asher J granted leave in a judgment delivered on 22 April 2010. Those proceedings were subsequently issued under CIV-2010-404-3000.

[8] BCPP had no ability to fund the litigation. The litigation was funded by Messrs Quinn and Peters through Ngati Awa and Peters Capital. The case was scheduled to go to trial commencing 14 March 2011. On 3 March 2011 the Court

was advised by memorandum that the fixture was no longer required. The memorandum contained the following advice to the Court:

...

4. Interests associated with a relative of the first defendant, Mr Birnie, have offered to acquire the shares of [Peters Capital] and [Ngati Awa] in BCPP. That offer has been accepted by [Peters Capital] and [Ngati Awa].

5. As a consequence:

(a) [Peters Capital] and [Ngati Awa] will, subject to the pre- emptive rights provided for in the constitution of BCPP, transfer their shares in BCPP to the purchaser [the tenth defendant in these proceedings BJF];

(b) Messrs Peters and Quinn will retire as directors of BCPP;

(c) [Peters Capital] and [Ngati Awa] will cease funding the present litigation on the basis that they no longer have any interest in BCPP;

(d) The defendants have agreed to the release of the security for costs paid by [Peters Capital] and [Ngati Awa] on behalf of BCPP.

6. While [Peters Capital] and [Ngati Awa] will cease funding the case and withdraw from participation, the company’s causes of action will remain extant.

...

11. For the sake of completeness, the Court’s attention is drawn to section 168 of the Companies Act 1993 which provides that no derivative action may be settled, compromised or discontinued without the approval of the Court. However, approval is not required in this case as the action is not being compromised, settled or withdrawn. BCPP’s claim against the defendants remains extant.

[9] Lang J as List Judge, noted the file inter alia:

2. The fixture on 14 March 2011 is vacated.

3. The proceeding is now to be listed in the Commercial List on 13

May 2011 ...

4. BCPP’s solicitors will be granted leave to withdraw once new solicitors have been appointed on its behalf.

[10] BCPP’s records disclose that on 24 March 2011 Ngati Awa and Peters Capital sold their shares at a price of .3333 dollars per share to the tenth defendant (BJF) in accordance with the above agreement.

[11] The remaining B share directors object to the transfer of shares to BJF as it is controlled by Mr Birnie. The effect of the sale and transfer of the six million Group B shares to BJF is that any resolutions supported by the Group A shareholders will also now have the support of a Group B director appointed by BJF whose interests will be aligned with the Group A shareholders.

[12] The plaintiffs commenced these proceedings in June 2011. They seek to have them consolidated with the derivative action which stands in abeyance at present. New solicitors have not yet been appointed to represent BCPP in those proceedings.

[13] The first to fourth defendants strike out application followed.

The position of other interested parties

[14] Mr O’Brien confirms that the fifth to ninth defendants abide the decision of the Court. BJF has taken no steps. Gough Capital Limited supports the plaintiffs’ position.

[15] For convenience, any reference hereafter to ―the defendants‖ is a reference to

the first to fourth defendant applicants.

The claim

[16] The plaintiffs plead two causes of action under s 174 of the Act. First, they plead:

(a) Mr Quinn and Ngati Awa, and Mr Peters and Peters Capital, in their respective capacities as directors and shareholders, owed to BCPP and consequently all of its shareholders, fiduciary duties at common law

and statutory duties under the Act in the prosecution of the derivative proceedings;

(b) that Mr Quinn, Ngati Awa and Mr Peters, Peters Capital breached the duties by:

(i) placing themselves in a position where their personal interests conflicted with the interests of BCPP;

(ii) preferring those interests over the interests of BCPP – specifically by making a personal profit by selling their shares to BJF where the opportunity to do so arose directly from the derivative proceedings;

(iii) failing to act in good faith by declining to disclose the full terms of settlement, which included a damages component of at least $1.5 million and a transfer of shares at a substantial overvalue to the expressed consideration of .3333 cents per share;

(iv) failing to exercise the care, diligence and skill expected of a reasonable director and shareholder.

[17] The plaintiffs plead that as a consequence they are likely to be oppressed, discriminated unfairly or unfairly prejudiced in a variety of ways.

[18] In the second cause of action the plaintiffs plead that, as a consequence of the transfer of the Ngati Awa and Peters Group B shares to BJF, the plaintiffs are or are likely to be oppressed, discriminated against, or unfairly prejudiced as the transfers have the effect that the Group A shares directors will have a majority in all resolutions before the board of directors for BCPP. The plaintiffs seek relief including orders preventing BJF from appointing a director under the relevant clause in the company’s constitution.

[19] The first to fourth defendants seek to strike out the plaintiffs’ claim against

them in the first cause of action on the grounds that it fails to disclose a reasonably arguable cause of action. In particular:

it fails to disclose that Messrs Quinn and Peters owed statutory and/or

_{fiduciary duties to BCPP and/or the plaintiffs as shareholders of BCPP;}

it fails to disclose that Ngati Awa and Peters Capital in their capacity as shareholders of BCPP owed statutory and/or fiduciary duties to BCPP and/or

_{the plaintiffs as shareholders of BCPP;}

it fails to show that the defendants breached those statutory and/or fiduciary

_duties.

_{[20] The defendants argue:}

that the plaintiffs have no standing to bring any claim as the appropriate

_{claimant is BCPP;}

that Ngati Awa and Peters Capital as shareholders did not owe any fiduciary

_{or statutory duties to the plaintiffs;}

Messrs Quinn and Peters, as directors of BCPP, did not owe fiduciary or

_{statutory duties to the plaintiffs;}

that the derivative proceedings remain extant and they are the correct vehicle

_{for the plaintiffs to pursue any claim.}

The plaintiffs have not suffered any loss.

[21] During submissions Mr Kennedy accepted that the additional, second cause of action did not seek relief from his clients and confirmed that he did not seek to have it struck out.

Decision

Principles

[22] The applicable principles on a strike out are well settled. In particular, it is inappropriate to strike out a claim summarily unless the Court can be certain that it cannot succeed. The case must be ―so certainly or clearly bad‖ that it should be precluded from going forward. Particular care is required in areas where the law is

confused or developing: Attorney-General v Prince and Gardner;[1] and Couch v

Attorney-General.[2]

Standing

[23] The defendants’ general submission is that the plaintiffs seek to pursue breaches of duties owed to BCPP. Mr Kennedy noted that it is for a company and not its shareholders or directors to bring an action to redress wrongs done to the company.[3] The plaintiffs cannot bring a claim on behalf of BCPP.

[24] During the course of submissions Mr Turkington accepted that the plaintiffs could not pursue claims on behalf of BCPP, and also accepted that, with the exception of the plaintiffs’ reliance on s 174, there were no statutory provisions under the Act that the first to fourth defendants could rely on to support that aspect of the allegation. He accepted that the pleadings would accordingly need

_{amendment but submitted the proceedings ought not to be dismissed outright.}

[25] As noted, the application is directed solely at the first cause of action. The claims are advanced under s 174 of the Act.

[26] Section 174 reads:

174 Prejudiced shareholders

(1) A shareholder or former shareholder of a company, or any other entitled person, who considers that the affairs of a company have been, or are being, or are likely to be, conducted in a manner that is, or any act or acts of the company have been, or are, or are likely to be, oppressive, unfairly discriminatory, or unfairly prejudicial to him or her in that capacity or in any other capacity, may apply to the Court for an order under this section.

(2) If, on an application under this section, the Court considers that it is just and equitable to do so, it may make such order as it thinks fit including, without limiting the generality of this subsection, an order—

(a) Requiring the company or any other person to acquire the shareholder's shares; or

(b) Requiring the company or any other person to pay compensation to a person; or

(c) Regulating the future conduct of the company's affairs; or

(d) Altering or adding to the company's constitution; or ...

[27] The issue is whether the plaintiffs can bring themselves within s 174. Section

174 is not solely a relief section. It provides, in s 174(1) a basis for claim. Relief is separately provided for in s 174(2). On this application the defendant applicants must satisfy the Court that the plaintiffs do not have an arguable case that the affairs of BCPP have been conducted in a manner that was oppressive, unfairly discriminatory or unfairly prejudicial to the plaintiffs as shareholders or that the Court could not consider it just and equitable to require the first to fourth defendants to pay compensation to the plaintiffs.

[28] While the plaintiffs cannot bring a claim on behalf of BCPP, the relief provisions of s 174 are arguably broad enough to enable the Court to make an order that the defendants pay compensation to the company (as any other person) as a

means by which the Court could make an adjustment between the company and its shareholders under s 168. Alternatively, if the defendants were ultimately found to have conducted the affairs of BCPP in an unfairly discriminatory or prejudicial way, the section could provide jurisdiction for an order requiring the defendants (as any other person(s)) to compensate other shareholders.

[29] The particular issue is whether it can be said that in compromising the derivative action in the way they did, the defendants were party to the affairs of the company being conducted in an oppressive, unfairly discriminatory or unfairly prejudicial way.

The status of the derivative proceedings

[30] On that point the first issue is whether it can be said that the defendants’ actions in relation to the derivative action come within the conduct of the affairs of the company. Mr Kennedy submitted the decision by the second and fourth defendants to sell their shares did not involve the affairs of BCPP. It was a decision of the defendants as shareholders alone. In my judgment that takes a rather too narrow view of the concept of the conduct of the affairs of the company for the purposes of s 174. In the context of s 174 it is appropriate to take a broad view of the affairs of the company. The ―affairs‖ of the company extend to anything generally concerning the company. The focus should not be on the sale of the shares but rather the result of that sale which was that the derivative proceedings brought in the name of the company were effectively compromised which supports the plaintiffs’ argument that the defendants used the derivative proceedings to their own advantage and thereby unfairly discriminated or prejudiced the plaintiffs.

[31] In response to that point, Mr Kennedy submitted that no steps had been taken by the defendants to settle, compromise or discontinue the derivative proceedings in breach of s 168 of the Act. He noted that the memorandum filed with the Court had drawn the Court’s attention to s 168 and that it was open to the plaintiffs to apply for leave to commence their own derivative action or for leave to take up the conduct of the existing derivative proceeding.

[32] While the claim remains extant insofar as it is before the Court, in substance the proceeding has effectively been compromised as that term is used in the context of ―settled or compromised or discontinued‖. The parties to whom leave was granted to bring the proceedings, Messrs Quinn and Peters, have effectively been bought off by interests associated with or related to the defendants to the derivative proceedings. The fixture which was scheduled to determine the substantive merits of the claim was vacated at the parties’ request. The solicitors for the plaintiff sought leave to withdraw (which was not granted, pending entry on the record of another solicitor for the plaintiff which has not occurred). Messrs Quinn and Peters have no intention to pursue the matter any further. From their point of view, the proceedings have, effectively, been settled or compromised. In the circumstances it is, with respect, artificial for the defendants to argue that no steps have been taken to settle, compromise or discontinue the derivative proceeding.

[33] The reason that s 168 provides for oversight by the Court of any settlement, compromise or discontinuance of the proceeding is to ensure that the Court maintains control over the proceeding and that a party is not bought off as noted at CA 168.01:[4]

This prevents the company from being able to ―buy off‖ a complainant, and prevents a shareholder or director from receiving relief to which the company as a whole may be entitled.

That is exactly what has occurred in the present case. Where, as here, the derivative proceeding was effectively compromised without the Court’s approval, the appropriate relief may be through the vehicle of a s 174 claim. As a condition of approval the Court could have made any order under s 167 it considered appropriate.

Is there an arguable case for breach of s 174?

[34] The leading case as to the meaning of the statutory wording used in s 174 is Thomas v H W Thomas Ltd.[5] The case considered s 209 of the Companies Act 1955 which included the same wording, namely ―oppressive, unfairly discriminatory or

_{unfairly prejudicial‖. Richardson J said of those words:}

I do not read the subsection as referring to three distinct alternatives which are to be considered separately in watertight compartments. The three expressions overlap, each in a sense helps to explain the other, and read together they reflect the underlying concern of the subsection that conduct of the company which is unjustly detrimental to any member of the company whatever form it takes and whether it adversely affects all members alike or discriminates against some only is a legitimate foundation for a complaint under s 209. The statutory concern is directed to instances or courses of conduct amounting to an unjust detriment to the interests of a member or members of the company. It follows that it is not necessary for a complainant to point to any actual irregularity or to an invasion of his legal rights or to a lack of probity or want of good faith towards him on the part of those in control of the company.

[35] Richardson J went on to note that for unfairness to be found there must be a visible departure from the standards of fair dealing viewed in the light of the history and structure of the particular company and the reasonable expectation of its members. It is apparent that the plaintiffs’ claim under s 174 is not restricted to identifying a breach of a separate statutory obligation owed by the first to fourth defendants to the company.

[36] The defendants argue that Messrs Quinn and Peters as directors did not owe fiduciary obligations to shareholders in the company: Percival v Wright.[6] The plaintiffs accept that as a general principle but submit that in the present case the fiduciary duties can arise in appropriate circumstances: Coleman and Others v Myers and Others.[7]

[37] Mr Kennedy submitted that the circumstances in which a fiduciary relationship might arise were limited and that vulnerability was an important, indeed cardinal feature of such a relationship: Watson v Dolmark Industries Ltd;[8] Coleman v Myers. He submitted that for a fiduciary duty to exist in the present case the plaintiffs would need to establish a proper basis for claiming reliance and vulnerability by reason of a special relationship of trust with Messrs Quinn and Peters. Mr Kennedy submitted the plaintiffs could not establish such a relationship.

[38] However, I am conscious of the comments of the Supreme Court in relation to striking out a claim in a developing area of the law. This is such an area.

Fiduciary duties may arise or be imposed if the circumstances of the case dictate it: Chirnside v Fay.[9] While in Coleman v Myers the Court focused on the lack of knowledge of the other shareholders, the Court made a number of general observations, including:[10]

[the] standard of conduct required from a director in relation to dealings with a shareholder will differ depending upon all the surrounding circumstances and the nature of the responsibility which in a real and practical sense the director has assumed towards the shareholder.

[39] The actions of Messrs Peters and Quinn in settling the derivative proceeding against Messrs Birnie and Norrie and Paoneone and Picasso must be considered in context. The derivative action was initiated based on the actions of Messrs Birnie and Norrie using their position as Group A directors to prevent BCPP exercising the put option which on the face of it was in the interests of BCPP. Had the derivative action been pursued to a fixture the plaintiffs, together with other Group B shareholders, could have anticipated they would have benefited from the fruits of any judgment that BCPP obtained. The plaintiff would have been entitled to apply under s 167(d) for example, for an order directing that any amount ordered to be paid be paid in whole or in part to shareholders of BCPP instead of to BCPP.

[40] However, what occurred was that the first to fourth defendants were able to use the proceedings they had obtained leave to bring in the name of BCPP as a vehicle to advance their personal interests by achieving the sale of the shares to a party associated with Mr Birnie at a price which, it is pleaded was more than 30 times the true value of the shares in the company. This is contrary to the obligation on behalf of parties to whom leave has been granted to conduct the litigation in the best interests of BCPP generally. There is some overseas authority to support the argument that Messrs Peters and Quinn, as the parties to whom leave was granted to pursue the proceedings on behalf of BCPP, could owe a fiduciary duty to the shareholders generally in these circumstances. In Discovery Enterprises Inc v Ebco

_{Industries Ltd the British Columbia Court of Appeal noted that:}[11]

... Thus in Heckmann, it was held that a group of shareholders who had begun a derivative suit and then quickly dropped it after selling all their shares in the company at a large profit, had likely breached their fiduciary duty.

[41] The means by which the defendants achieved the sale of the second and fourth defendants’ shares in BCPP was undoubtedly the derivative proceedings brought in the name of a company which, taking a purposive approach to the interpretation of s 174 comes within the ambit of the conduct of the affairs of the company. The affairs of the company must include decisions as to the conduct of its litigation or proceedings pursued by it.

[42] I conclude that it is at least arguable, in circumstances where Messrs Quinn and Peters were granted leave to pursue the derivative action in the name of BCPP against Messrs Birnie and Norrie that, given the clear current intention in s 168 that the Court would oversee resolution of proceedings and the ability of a party to have a say in them, Messrs Quinn and Peters could owe a duty, when considering resolution of those proceedings and the terms upon which they are to be resolved, to parties such as the shareholding plaintiffs in this case. Messrs Peters and Quinn and their associated companies only obtained the opportunity to sell their shares at a substantial overvalue because of the fact they were in control of the derivative proceedings.

[43] Mr Kennedy also submitted that Ngati Awa and Peters Capital were under no obligation to decline to sell their shares in BCPP and were always free to do so. Again, of course, that general proposition is correct and unexceptional. However, the sale did not occur in a vacuum. The sale occurred in circumstances where it is strongly arguable that, given the purchaser was a party related to Mr Birnie, the sale (and price for the shares) was only achieved as a consequence of the derivative action which it was intended to pursue on behalf of BCPP and that the defendants took advantage of those proceedings to achieve the outcome of the sale of the shares at a favourable value.

[44] The defendants’ actions could amount to unfairness in a broad sense in that it

would be a visible departure from the standards of fair dealing viewed in the light of

the history and structure of the particular company and the reasonable expectations of its members: Latimer Holdings Ltd v SEA Holdings NZ Ltd.[12]

[45] Mr Kennedy next submitted that there was no preference because BJF had no obligations to BCPP and that it could not be assumed that the money agreed to be paid by BJF would have been available to settle the derivative proceeding. BCPP was admittedly not in a position to pursue the proceedings itself. For that reason leave was granted to Messrs Quinn and Peters to pursue the proceedings on its behalf. In the course of those proceedings Messrs Quinn and Peters have compromised those proceedings to their advantage and it is at least arguable that such compromise (particularly in its terms) was a preference to them or at least their interests, over the plaintiffs (and other shareholders). Whether BJF may or may not have made further moneys available or whether the moneys would have been available if the proceedings had not been compromised is a factual matter unsuitable for determination on this application.

[46] The focus of the above decision has been on the actions of Messrs Quinn and Peters. As noted Mr Turkington accepted that it will be necessary to replead and in particular to plead Ngati Awa and Peters Capital were knowing recipients of the benefit gained through the breach of fiduciary duty: Needham v EBT.[13] The language of s 174 would permit an order to be made against them as ―any other person‖ required to pay compensation. They are effectively the recipients of the

actions of Messrs Peters and Quinn.

Result

[47] For the above reasons the application to strike out is dismissed. An amended claim is, however, required, to address the defects in the current proceeding. The plaintiffs are to file and serve any amended statement of claim by 3 February 2012. The matter is returned to the Commercial List for further direction on 10 February

_2012.

Costs

_{[48] Costs to the plaintiffs on a 2B basis together with disbursements as fixed.}

Venning J

---

[1] _{Attorney-General v Prince and Gardner [1998] 1 NZLR 262 (CA) at 267.}

[2] _{Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].}

[3] Foss v Harbottle [1843] EngR 478; (1843) 2 Hare 461; Christensen v Scott [1996] 1 NZLR 273 (CA).
[4] _{Brookers Company Law (online looseleaf ed, Thomson Reuters).}
[5] Thomas v H W Thomas Ltd [1984] 1 NZLR 686 at 693.
[6] _{Percival v Wright [1902] 2 Ch 421}
[7] _{Coleman and Others v Myers and Others [1977] 2 NZLR 225 (CA).}

[8] Watson v Dolmark Industries Ltd [1992] 3 NZLR 311 (CA) at 315.
[9] _{Chirnside v Fay [2007] 1 NZLR 433 at [75] and [ 85].}
[10] _{Coleman & Others v Myers and Others at 324.}
[11] Discovery Enterprises Inc v Ebco Industries Ltd 58 BCLR (3d) 105.

[12] _{Latimer Holdings Ltd v SEA Holdings NZ Ltd [2005] 2 NZLR 328, at 346-7.}

[13] Needham v EBT [2006] NZHC 509; (2006) 3 NZCCLR 57 (HC).