Dominion Finance Group Limited v Fright Aubrey Limited (in liquidation) [2015] NZHC 1411 (22 June 2015)

High Court of New Zealand

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Dominion Finance Group Limited v Fright Aubrey Limited (in liquidation) [2015] NZHC 1411 (22 June 2015)

Last Updated: 13 July 2015

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2015-409-000204 [2015] NZHC 1411

BETWEEN	DOMINION FINANCE GROUP LIMITED First Applicant QBE INSURANCE (INTERNATIONAL) LIMITED Second Applicant
AND	FRIGHT AUBREY LIMITED (IN LIQUIDATION) First Respondent AUSTIN JOHN FORBES Second Respondent ALISTER SPEDDING JOHNSTON Third Respondent GORDON LEWIS HANSEN Fourth Respondent DAVID IAN HENDERSON Fifth Respondent ADOLF DE ROOS Sixth Respondent DANIEL JAMES GODDEN Seventh Respondent PRICE WATERHOUSE COOPERS Eighth Respondent RICHARD WILLIAMS GIBBONS Ninth Respondent

Hearing:	22 June 2015
Appearances:	B M Russell and K M Kendrick for First Applicant E J Whiteside for Second Applicant and First Respondent
Judgment:	22 June 2015

DOMINION FINANCE GROUP LIMITED v FRIGHT AUBREY LIMITED (IN LIQUIDATION) [2015] NZHC

1411 [22 June 2015]

Reasons: 22 June 2015

_{REASONS FOR JUDGMENT OF GENDALL J}

[1] This proceeding involves an application for orders under the Law Reform Act

1936 pursuant to s 9 in relation to certain monies payable under a professional indemnity insurance policy held by the first respondent, Fright Aubrey Limited (In Liquidation) (FAL), with the second applicant, QBE Insurance (International) Limited (QBE).

[2] The third call of this matter occurred today, 22 June 2015. Mr Russell and Ms Kendrick appeared as counsel for the first applicant. Ms Whiteside appeared for the second applicant and the first respondent.

[3] When this matter was first called on 18 May 2015 there were appearances for all but the fifth respondent, Mr Henderson, and the ninth respondent, Mr Gibson. All respondents were served with this proceeding, this effectively taking place around

29 April 2015.

[4] Mr Henderson, who is an undischarged bankrupt, it has been confirmed by counsel, is well aware of this proceeding. The Official Assignee’s Office and its solicitors, Anthony Harper, have also been made aware of the present application and have been provided with a copy of it.

[5] The first, second and eighth respondents have confirmed by memorandum and submission to this Court that they do not oppose the application. The other respondents (the third, fourth, fifth, sixth, seventh and ninth respondents), all of whom were served with all papers in this proceeding some time ago, have taken no steps nor filed any opposition to the application.

[6] As the application itself notes, the claim is brought essentially because QBE was concerned to ensure that no claims against its policy-holder FAL could arise out of litigation involving Property Ventures Limited (In Liquidation) (PVL) (which had sued FAL for negligence covered by FAL’s professional indemnity policy with QBE), such litigation generally being carried out in the proceeding Walker v Forbes

& Ors which could fall to be indemnified by QBE out of FAL’s professional

indemnity policy for the 2008/2009 policy year. This policy held by FAL for its

2008/2009 year responds to the claim by the first applicant, Dominion Finance Group Limited (In Receivership and In Liquidation) (Dominion Finance), again claiming against FAL in negligence.

[7] It is clear that over the course of the three occasions on which this matter has been called before this Court, extensions of time have been granted to counsel and various parties to allow significant additional time for further consideration of the application. As I have noted above, no opposition to the application has been filed or notified.

[8] Having considered all the material before the Court, and the matters deposed to in the unchallenged affidavit of Barry Phillip Jordan filed in support of this application, and noting the lack of any opposition to the application, I am satisfied it should succeed. The question of priority has been separately resolved between Dominion Finance and PVL. PVL, QBE and FAL all support Dominion Finance’s claim (as the only claim notified within the relevant policy claim period) to priority to the insurance cover. Making the orders sought will enable QBE to release an agreed settlement payment to Dominion Finance following a conditional settlement of long-running proceedings between Dominion Finance, FAL and QBE. This will also enable a net-settlement amount to be distributed to Dominion Finance’s secured investors without further delay as one of the final steps in its receivership.

[9] I confirm the orders made today, 22 June 2015, as follows:

(a) Permission is granted for the commencement of this proceeding by way of originating application.

(b) A declaration is now made that there are no prior or equally ranking charges pursuant to s 9(3) Law Reform Act 1936 on all insurance money payable by QBE Insurance (International) Limited under its

2008/2009 professional indemnity insurance policy with the first respondent, Fright Aubrey Limited (In Liquidation), in respect of any liabilities for which the professional indemnity insurance policy referred to above indemnified Fright Aubrey Limited (In Liquidation) to or with the liabilities arising from two claims against Fright Aubrey Limited (In Liquidation) by Dominion Finance Group Limited (In Receivership and In Liquidation).

...................................................

Gendall J

Solicitors:

Lane Neave, Christchurch

Chapman Tripp, Christchurch