100 Investments Ltd v Walker [2024] NZHC 144 (12 February 2024)

Last Updated: 21 February 2024

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2019-404-1160 [2024] NZHC 144

BETWEEN	100 INVESTMENTS LTD First Plaintiff Continued...
AND	ROBERT BRUCE WALKER First Defendant Continued...

On the papers
Counsel:	A Barker KC and R Hucker for the first to fourth plaintiffs in 1160 and the first to fourth defendants in 0274 D Salmon KC and N R Frith for the second defendant in 1160 and the sixth defendant in 0274 J MacGillivray and W Hofer for the third defendant in 1160 and the seventh defendant in 0274 D J Cooper KC as litigation guardian for Mr Walker J Moss for the fifth to seventeenth defendants in 1160 and the first to thirteenth plaintiffs in 0274
Judgment:	12 February 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 12 February 2024 at 11.30 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

100 INVESTMENTS LTD and OTHERS v WALKER and OTHERS [2024] NZHC 144 [12 February 2024]

CIV 2019-404-1160

FTG SECURITIES LTD Second Plaintiff RFD FINANCE LTD Third Plaintiff TOMANOVICH HOLDINGS LTD Fourth Plaintiff

AND

LPF GROUP LTD Second Defendant SPF NO 10 LTD (In Liquidation) Third Defendant KEVIN JOHN WHITLEY as Liquidator of Property Ventures Ltd (In Liquidation) Fourth Defendant PROPERTY VENTURES LTD (In Liquidation) Fifth Defendant CASHEL VENTURES LTD (In Receivership and Liquidation) Sixth Defendant TAY VENTURES LTD (In Receivership and Liquidation) Seventh Defendant LIVINGSPACE PROPERTIES LTD (In Liquidation) Eighth Defendant TUAM VENTURES LTD (In Liquidation) Ninth Defendant CASTLE STREET VENTURES LTD (In Liquidation) Tenth Defendant LICHFIELD VENTURES LTD (In Liquidation) Eleventh Defendant Continued...

ST ASAPH VENTURES LTD (In

Liquidation)

Twelfth Defendant

BEECHNEST LTD (In Receivership and Liquidation)

Thirteenth Defendant

92 LICHFIELD LTD (In Receivership and Liquidation)

Fourteenth Defendant

MONTECRISTO CONSTRUCTION

COMPANY LTD (In Liquidation) Fifteenth Defendant

FIVE MILE HOLDINGS LTD (In

Liquidation)

Sixteenth Defendant

CIV 2022-404-274

BETWEEN

KEVIN JOHN WHITLEY First Plaintiff PROPERTY VENTURES LTD (In Liquidation) Second Plaintiff FIVE MILE HOLDINGS LTD (In Liquidation) Third Plaintiff CASHEL VENTURES LTD (In Liquidation and Receivership) Fourth Plaintiff TAY VENTURES LTD (In Liquidation and Receivership) Fifth Plaintiff LIVINGSPACE PROPERTIES LTD (In Liquidation) Sixth Plaintiff BEECHNEST VENTURES LTD (In Liquidation) Seventh Plaintiff Continued...

AND

CASTLE STREET VENTURES LTD (In Liquidation) Eighth Plaintiff LICHFIELD VENTURES LTD (In Liquidation) Ninth Plaintiff 92 LICHFIELD LTD (In Liquidation) Tenth Plaintiff ST ASAPH VENTURES LIMITED (In Liquidation) Eleventh Plaintiff MONTECRISTO CONSTRUCTION COMPANY LTD (In Liquidation) Twelfth Plaintiff TUAM VENTURES LTD (In Liquidation) Thirteenth Plaintiff 100 INVESTMENTS LTD First Defendant FTG SECURITIES LTD Second Defendant RFD FINANCE LTD Third Defendant TOMANOVICH HOLDINGS LTD Fourth Defendant ROBERT BRUCE WALKER Fifth Defendant LPF GROUP LTD Sixth Defendant SPF NO 10 LTD (In Liquidation) Seventh Defendant

• [1] On 9 February 2024, LPF Group Ltd (LPF) applied under s 56(3) of the Senior Courts Act 2016 for leave to appeal my decision, in a judgment of 7 February 2024,¹ declining LPF’s application to adjourn the trial of these two consolidated proceedings that is due to commence on 26 February 2024.

• [2] My judgment of 7 February 2024 also declined an application by LPF under s 56(3) for leave to appeal my earlier decision² declining LPF’s application for particular discovery from the Whitley plaintiffs. LPF has applied (also on 9 February 2024) to the Court of Appeal for special leave to appeal my discovery decision. LPF has indicated that if I decline leave to appeal my adjournment decision, it will seek special leave from the Court of Appeal and ask that Court to hear both applications for special leave together.

• [3] In these circumstances, and given the proximity of trial, LPF asked for an urgent determination of its application for leave. The plaintiffs responded promptly, filing notices of opposition and memoranda in support this morning. They agreed with LPF’s request that I determine the leave application on the papers.

Legal principles

• [4] In Lendlease Capital Services Pty Ltd v Arena Living Holdings Ltd,³ the Court of Appeal said leave to appeal under s 56(3) should not be granted unless the proposed appeal:

(a) raises some question of law or fact capable of bona fide and serious argument in a case involving some interest (public or private) of sufficient importance to outweigh the cost and delay of the appeal; and

(b) has some reasonable prospect of success.

¹ 100 Investments Ltd v Walker [2024] NZHC 93.

2. 100 Investments Ltd v Walker [2023] NZHC 3732. The background to these proceedings, and various abbreviations used in this judgment, are found in that judgment.

³ Lendlease Capital Services Pty Ltd v Arena Living Holdings Ltd [2020] NZCA 471 at [4].

Grounds of application

• [5] LPF’s adjournment application was under r 10.2 of the High Court Rules 2016. This empowers a court to adjourn a trial if it is in the interests of justice to do so. A decision to grant or decline an adjournment involves a balancing exercise between the parties. Relevant to that exercise is whether the applicant has acted reasonably and done everything practicable to avoid the need for an adjournment. The court must also consider the interests of litigants in other cases before the court.

• [6] In my decision, I considered that the key issues on the adjournment application (and also on LPF’s application for leave to appeal my discovery decision) were “[w]hether the delay is worth it, and whether LPF has done everything practicable to avoid the need for an adjournment”.⁴ I resolved those issues against LPF and concluded that the interests of justice therefore did not favour an adjournment.⁵

• [7] LPF says there were six errors in my decision which cumulatively mean that my exercise of the discretion in respect of the interests of justice was plainly wrong. It says that its proposed appeal raises issues that involve private interests of sufficient importance (namely, a contention that its right to a fair trial is imperilled) to warrant any delay that might arise from granting leave. It says there is also a public interest (namely, avoiding the waste of resources that would result from an aborted trial or a retrial).

Opposition

• [8] The plaintiffs say there is no merit to any of LPF’s allegations of errors in my decision. The Whitley plaintiffs also emphasise that my decision was a discretionary one, so that the threshold for establishing error is higher than that for a general appeal. The secured creditors submit that decisions on adjournment applications ought to be less amenable to the grant of leave than other judgments.

• [9] The secured creditors also say that my adjournment decision depended entirely on whether leave should be granted to appeal my discovery decision. They say that,

⁴ 100 Investments Ltd v Walker [2023] NZHC 3732 at [29].

⁵ At [44].

having declined leave to appeal my discovery decision, I cannot grant leave to appeal an adjournment decision that was dependent on the success of that earlier leave application, as that would involve me revisiting my earlier findings on that application.

Decision

• [10] The Whitley plaintiffs are correct that the proposed appeal would be an appeal against a discretion. LPF would therefore face a higher threshold than that faced by an appellant on a general appeal. LPF’s application implicitly accepts this, by contending that my discretionary decision was “plainly wrong” because of the cumulative effect of six alleged errors.

• [11] First, LPF says I failed to address the significant prejudice that would be visited on the defendants in having to defend a case based almost entirely on documents, without access to the complete documentary record. I do not accept that. I recorded LPF’s submission that the documents were not only relevant but important, so that if they were not discovered the trial would not be fair for the defendants.⁶ That I did not set out every reason that LPF contended that the trial would be unfair is neither here nor there. I then addressed whether the documents were as important as LPF contended and whether the consequent delay was worth it.

• [12] Secondly, LPF submits there was no cogent evidence upon which I could have concluded that the documents sought were not likely to be sufficiently important. I disagree. The evidence was in the court record and in the affidavit evidence that there were other documents and evidence available to LPF.⁷ The court record included, I said, that in 2022 LPF and other defendants were (through a consolidation application) taking the position that Mr Whitley’s rights to see various documents need not be determined before these two proceedings were heard. LPF submits, in its memorandum in support of its application for leave to appeal, that consolidation would not have resulted in Mr Whitley’s documents applications being determined at trial, but rather as interlocutory matters. I have looked again at the relevant documents. LPF applied for orders that the various proceedings be consolidated and heard

⁶ 100 Investments Ltd v Walker [2024] NZHC 93 at [28].

⁷ At [33]–[39] and [43] respectively.

concurrently. It continued in that vein in its submissions in support of its consolidation application. I therefore reject the submission made by LPF on this application.

• [13] Thirdly, LPF says I erred in concluding that the defendants had taken insufficient steps in 2022 in respect of the Whitley plaintiffs’ discovery. This does not reflect my findings. I merely said that the defendants’ lack of action until July 2023 was of “some note”.⁸

• [14] Fourthly, LPF says I erred in assessing the length of time these proceedings had been on foot. It is correct that my calculations were awry.⁹ But, as my examination of the procedural history made clear, I was well aware of how long the proceedings had been on foot. My miscalculations had no bearing on my assessment that an adjournment would cause prejudice to the plaintiffs and other users of the court’s limited resources.

• [15] Fifthly, LPF says I did not consider and balance the delays caused by the plaintiffs and their failure to address the issues expeditiously. I consider that this point necessarily involves me revisiting my findings on the discovery application and on the application for leave to appeal from my decision on that application.

• [16] Finally, LPF says that my decision did not seek a pragmatic solution that might enable the trial to commence whilst reducing the risk of irremediable prejudice. It is correct that I did not seek such a solution. But this was not an error. I was deciding the applications that were before me. I was not making directions after, say, a case management conference.

• [17] Even on a cumulative basis, I do not consider that LPF has reasonable prospects of showing that I was plainly wrong to decline its application for an adjournment. I therefore decline its application for leave to appeal.

Result

• [18] I decline LPF’s application for leave to appeal.

⁸ At [42].

⁹ At [27].

• [19] The plaintiffs are entitled to costs from LPF on the application.

Campbell J