Carter v Canterbury Design and Development Limited

[2023] NZHC 1249

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2022-409-411

[2023] NZHC 1249

IN THE MATTER

of specific performance of agreements to issue shares

BETWEEN

SIMON LAIDLAW CARTER

First Plaintiff

CHRISTOPHER JOHN SWANN
Second Plaintiff

AND

CANTERBURY DESIGN AND DEVELOPMENT LIMITED

First Defendant

AARON JOHN HOOPER and CARL JAMES FORDYCE

Second Defendants

Hearing:

16 May 2023

(By telephone conference)

Appearances:

M G Kirkland for Plaintiffs

No appearance for First Defendant
G D Jones for A J Hooper (Second Defendant)
K M Prendergast for C J Fordyce (Second Defendant)

Judgment:

25 May 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Judgment upon admissions of cause of action)

CARTER v CANTERBURY DESIGN AND DEVELOPMENT LIMITED [2023] NZHC 1249 [25 May 2023]

[1]        The     plaintiff,    by     an     application     for     summary     judgment     dated 9 September 2022, sought the following orders:

(a)that 500 ordinary shares are issued in the first defendant company, Canterbury Design and Development Limited (the Company) (being 33% of the total shares in the Company) and that they are transferred to the first plaintiff;

(b)that the $50,000 paid by the first plaintiff, Simon Carter, to the Company on 20 January 2022 be transferred back to the Company and be recorded as “working capital”;

(c)that Simon Carter is appointed a director of the Company;

(d)that both plaintiffs are granted full access to the accounts and records of the Company including full Xero access; and

(e)that the costs of and incidental to the proceeding are paid by the defendants to the plaintiffs on an  indemnity  basis  pursuant  to  clause 18.1 of the business agreement or otherwise in law.

[2]        Cutting across the hearing of the summary judgment scheduled for Monday 22 May 2023 are admissions filed by the defendants.

[3]Each of the defendants admit the relief sought in respect of paragraphs (a) and

(c) of the statement of claim. They also agree costs on a 2B basis, which I take to be an admission as to liability for costs (paragraph (e)), but of scale costs only.

[4]A telephone conference was convened for the afternoon of 16 May 2023.

[5]        Counsel for the plaintiff, in a memorandum dated 16 May 2023, sought that the hearing on 22 May 2023 be vacated and that orders be made in terms of paragraphs

(a) and (c) as set out above.

[6]        The plaintiffs maintain their claim for indemnity costs which will be dealt with on the papers, as timetabled below.

[7]        The plaintiffs abandoned their claim for summary judgment in respect of the relief at paragraph (b) above.

[8]        Nor was relief sought in respect of access to the Company’s accounts, as sought at paragraph (d) above, the expectation being that Mr Carter, when appointed as director, will gain access to the Company’s information.

[9]        Accordingly, on the basis of admissions of relief filed by each defendants, there are orders in terms of paragraphs (a) and (c) from [1] above.

[10]      The application for summary judgment in respect of paragraph (b) from [1] above is dismissed.

[11]There is judgment for liability in respect of costs.

[12]      The plaintiffs will file their submissions firstly, as to the basis for seeking indemnity costs and secondly, the quantum of those costs with the normal supporting information; that information to be filed on or before Friday 26 May 2023.

[13]      The defendants will have 15 working days to respond (that is by Monday    19 June 2023). I will then deal with those costs on the papers.

[14]      Counsel were advised a decision as to costs  will  not  be  available  until  July 2023.

[15]      I make no order in respect of paragraph (d) in [1] above, given the assumption that the claim will be overtaken through Mr Carter’s appointment as director, but     I reserve leave for that issue to be addressed if that optimism proves to be misplaced.

Associate Judge Lester

Solicitors:

Carer Law & Advisory Limited, Dunedin (for Plaintiffs)

Lane Neave, Christchurch (for Second Defendant, Mr Hooper) Mitchell Newman, Christchurch (for Second Defendant, Mr Fordyce)

Copy to counsel:

M Kirkland, Barrister, Dunedin (for Plaintiffs)

G D Jones, Barrister, Christchurch (for Second Defendant, Mr Hooper)

M K Prendergast, Barrister, Christchurch (for Second Defendant, Mr Fordyce)