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Judgment: Robert Michael Symons v Wiltshire Investments

[This is a corrected version of media release - Ed.]

Supreme Court of New Zealand

9 August 2012

Media Release – For Immediate Publication

Robert Michael Symons & Others V Wiltshire Investments Limited

(SC 92/2011)

[2012] NZSC 70


This summary is provided to assist in the understanding of the Court’s judgment. It does not comprise part of the reasons for that judgment. The full judgment with reasons is the only authoritative document. The full text of the judgment and reasons can be found at www.courtsofnz.govt.nz.

The appellants, Messrs Gregory and Robert Symons, together with Mr Alan Wiltshire (through Constellation Projects Ltd), were the equity participants in Opus Fintek Ltd (Opus) and Fibroin Initiatives Ltd (Fibroin). Mr Wiltshire and Gregory Symons were directors of both companies as was Robert Symons up until 25 August 2009. ASB Bank made advances to Opus and Fibroin, which were guaranteed by, inter alia, Gregory and Robert Symons, Mr Wiltshire and Constellation Projects Ltd.

There was a dispute between Opus and another company which was settled on a basis which involved the other party agreeing to pay Opus $5.2 million by instalments. The other company made some payments but then stopped paying leaving an unpaid balance of $2.35 million. The ASB Bank then called in the loans in April 2008 and the amount outstanding was paid by Wiltshire Investments Ltd, a company associated with Mr Wiltshire. This was pursuant to an arrangement under which Mr Wiltshire and Constellation Projects were released from their guarantees. The debts and associated securities, including the remaining guarantees, were assigned to Wiltshire Investments.

Opus sought to recover the outstanding balance under the settlement agreement with the other company pursuant to litigation which was largely or entirely funded by Wiltshire Investments. On 4 September 2009, Wiltshire Investments exercised its power under the securities it had acquired from the ASB Bank to appoint an Auckland barrister as receiver, to take control of Opus. He subsequently entered into settlement discussions with the other company and, in December 2009, he concluded a full and final settlement of all outstanding claims. Under this settlement, $1.4 million was paid, in instalments, to Opus. The precise terms of the settlement were recorded in a written agreement which has never been disclosed. All instalments were paid and the money received by Opus was paid on to Wiltshire Investments in reduction of the assigned debt.

Wiltshire Investments issued proceedings for summary judgment against Gregory and Robert Symons and in due course the High Court entered summary judgment against them for the amount of the assigned debt less the $1.4 million received as a result of the settlement. The Court of Appeal upheld that decision.

On appeal to the Supreme Court, the appellants argued that Wiltshire Investments had not established that the appellants did not have a defence to the entry of summary judgment. This was for reasons associated with the non-disclosure of the settlement agreement. The respondents argued that the agreement was irrelevant to the proceedings.

By majority (McGrath and Chambers JJ dissenting), the Supreme Court has allowed the appeal.

Depending on its terms, the settlement agreement might have provided a defence to the claim. Given all the circumstances, the possibility that this is so cannot be discounted. The relevant circumstances include a refusal to provide the appellants with a copy of the agreement when requested, taking reasonably elaborate measures to avoid disclosure (involving removing Gregory Symons as director of a company which was party to the settlement), oblique references to the settlement agreement in company resolutions in terms suggesting that the settlement agreement was not simply between Opus (and associated companies) and the other company, and a refusal to disclose the settlement agreement despite the grant of leave to appeal to the Supreme Court on the issue of disclosure.

McGrath and Chambers JJ would have dismissed the appeal on the basis that the point on which it succeeds was not taken earlier in the proceedings and the non-disclosure of the agreement did not fairly raise the concerns referred to by the majority.



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