Sheahan v ANZ Bank NZ Ltd [2013] NZHC 888 (26 April 2013)

IN THE MATTER OF THE LIQUIDATIONS OF SS FARMS AUSTRALIA PTY LTD, CEDENCO JV AUSTRALIA PTY LTD AND SK FOODS AUSTRALIA PTY LTD

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This judgment was delivered by me on 26 April 2013 at 11.00am pursuant to Rule

SHEAHAN AND LOCK V ANZ BANK NZ LTD AND DEKKER HC AK CIV 2011-404-1623 [26 April 2013]

[1] Messrs Sheahan and Lock (the Australian liquidators) are the liquidators of three Australian companies: SS Farms Australia Pty Ltd, Cedenco JV Australia Pty Ltd and SK Foods Australia Pty Ltd. They have applied, under art 21(1)(d) of the First Schedule to the Insolvency (Cross-border) Act 2006 (the Act), for an order that an employee of ANZ Bank NZ Ltd,1 Ms Dekker, be examined by the liquidators. The three liquidations have been recognised as foreign main proceedings in New Zealand.2

(1) Upon recognition by the High Court of a foreign proceeding, whether main or non-main, where necessary to protect the assets of the debtor or the interests of the creditors, the Court may, at the request of the foreign representative, grant any appropriate relief, including:

(d) providing for the examination of witnesses, the taking of evidence, or the delivery of information concerning the debtor's assets, affairs, rights, obligations, or liabilities;

[3] In a judgment delivered on 15 November 2012, I adjourned the application for further evidence.3 I did so to obtain more information about relevant Australian law, in relation to the circumstances in which Australian liquidators of a solvent company might be entitled to examine someone such as Ms Dekker, if she were within that jurisdiction.4

_{[4] Dealing with the Australian liquidators’ examination
application, I said:}

1 Since the application was filed, the bank has changed its name from ANZ National Bank Ltd to

3 ANZ National Bank Ltd v Sheahan and Lock [2013] 1 NZLR 674 (HC) at para [159](c). A

_{discussion of the points raised on the present application can be found
at paras [98]–[114].}

[112] The competing considerations are finely balanced. However, I am concerned about the absence of any evidence of foreign law to establish whether an Australian Court would authorise an examination by the liquidators of Cedenco Australia, given its position of solvency. As a matter of discretion, it would appear wrong in principle to make an order under the cross-border legislation, if the Australian liquidators would not be able to obtain one if Ms Dekker were resident in Australia. To do so would provide an unnecessary and undesirable forensic advantage to the Australian liquidators.

[114] As I see it, there are two possibilities. The Australian liquidators may elect to file expert evidence on the point. If that were done, I could act on uncontested evidence or resolve any disputed issues (following affidavits in reply) after a further hearing. Alternatively, if appropriate under applicable Australian law, the Australian liquidators might apply to the Federal Court for directions on whether, if Ms Dekker were within the jurisdiction of that Court, it would order her examination, given the solvent position of Cedenco Australia and any other relevant discretionary considerations, such as the liquidators’ conduct. If the Federal Court were prepared to rule on that issue in the Australian liquidators’ favour, I would be prepared to make an order that Ms Dekker be examined in New Zealand, on terms to be settled later.

[5] The Australian liquidators elected to address the point on the basis of the first of those options, the use of expert evidence. As a result of subsequent directions, affidavit evidence has been filed by Professor O’Donovan, on behalf of the Australian liquidators and Adjunct Professor Fisher, on behalf of ANZ Bank Ltd (ANZ NZ) and Ms Dekker.

[6] Both expert witnesses are well qualified to give relevant evidence. Professor James O’Donovan holds a Chair at the University of Western Australia, and has done so since 1985. He has also been engaged as a consultant by leading Australian law firms on insolvency issues. Professor Fisher presently holds positions as General Counsel of the University of Sydney and Adjunct Professor at that University’s Faculty of Law. Before his appointment to the University, Professor Fisher was a partner in a leading Australian law firm and specialised in corporate reorganisation and insolvency work. Both have authored or edited well-known insolvency law texts or journals.

2013. Before that date, a dispute arose about whether Professor Fisher’s evidence went beyond permissible limits. The specific point is whether the expert evidence on foreign law must be confined to matters of “content”, as opposed to “application”. That was a distinction drawn by Lindgren J, in Allstate Life Insurance Co v Australia

and New Zealand Banking Group Ltd (No. 33).5 After referring to earlier authorities,

The distinction is between identifying and expanding, in general terms, the scope, meaning and effect of relevant statutory and non-statutory foreign law (content evidence) and opining how that foreign law applies to the facts of a particular case (application evidence).

[8] Mr Chisholm, for the Australian liquidators, supports the view expressed by Lindgren J. It is a view that was affirmed, albeit I think in a more nuanced form,6 by the High Court of Australia in Neilson v Overseas Projects Corporation of Victoria Ltd.7 On the other hand, Mr Tingey, for ANZ NZ and Ms Dekker, urges a broader approach, based on a judgment of Einstein J in Idoport Pty Ltd v National Australia Bank Ltd.8 Einstein J distinguished the approach taken by Lindgren J, on the basis that the case with which he was concerned involved consideration of “foreign law as a subsidiary fact necessary to determine the rights and liabilities of the parties under the law of New South Wales”.9

evidence, both counsel requested that the 18 April hearing be limited to consideration of the admissibility issue. I agreed to that course.

5 Allstate Life Insurance Co v Australia and New Zealand Banking Group Ltd (No. 6) (1996) 64

FCR 79 (FCA) at 82. On this issue it is agreed that there is no difference between Australian law

7 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 (HCA) at 371.

The relevant passage from the joint judgment of Gummow and Hayne JJ is set out at para [35]

8 _{Idoport Pty Ltd v National Australia Bank
Ltd [2000] NSWSC 1077; (2000) 50 NSWLR 640 (NSWSC) at 656–657.}

[10] The three Australian companies and two in New Zealand, Ex Ced Foods and Cedenco Ohakune, (both in liquidation) were part of (what was called) the Cedenco group of companies.11 For the purpose of this part of this judgment, I refer collectively to the Australian entities as Cedenco Australia and to the New Zealand companies as Cedenco NZ.

[11] The Cedenco NZ companies are owned by SK Foods International Ltd. That too is a New Zealand company. There is a dispute as to ownership of shares in SK Foods International. The competing claimants are a group of companies in the United States, beneficially owned by a Mr Salyer, and the Bank of Montreal.

[12] Cedenco JV Australia is owned by SK Foods Australia. SK Foods Australia and SS Farms Australia are owned by entities in the United States. There is a dispute about ownership of the shares in those companies. The competing claimants are SK Foods LP12 and entities associated with Mr Salyer.

[13] Cedenco NZ and Cedenco Australia carried on business as food processors and distributors. The work was seasonal in nature. The companies produced fruit and vegetable powders, purées, pastes and the like. The nature of the banking facilities extended to each of the companies reflected that. The major sources of finance were ANZ NZ and ANZ Banking Group Ltd (ANZ Australia) respectively. To secure the amounts owing by Cedenco NZ to the banks, ANZ NZ took a debenture over the assets of Cedenco Foods on 24 February 2000 and a general security agreement over the undertaking of Cedenco Ohakune, on 1 November 2005.

[14] By 2008, it became clear that Cedenco NZ were facing financial difficulties. Korda Mentha, a firm of chartered accountants in New Zealand, were appointed by

10 Substantially, this summary is taken from ANZ National Bank Ltd v Sheahan and Lock [2013] 1

12 A limited partnership in the United States, currently subject to Chapter 11 of the US Bankruptcy

Cedenco NZ as investigating accountants for that company, at the urgings of ANZ NZ. At this time, the person with carriage of the ANZ NZ’s relationship with Cedenco NZ was Ms Dekker. While she is based in New Zealand, Ms Dekker was also “relationship manager” for ANZ Australia, in respect of the Cedenco Australia companies.

[15] During 2009, ANZ NZ required Cedenco NZ to arrange for Cedenco Australia to cross-guarantee their indebtedness. It is clear that, if Cedenco Australia had declined to do so, ANZ NZ would have withdrawn its financial accommodation to Cedenco NZ and called up an indisputable debt then owing. On 31 July 2009, a comprehensive Deed of Cross Guarantee was granted in favour of both ANZ NZ and ANZ Australia. Under this deed, the Cedenco NZ and Cedenco Australia companies jointly and severally guaranteed each other’s obligations to the two ANZ entities.

[16] Less than three months later, on 19 October 2009, ANZ NZ gave notice to Cedenco NZ of an event of default under the loan and security documents relating to the Cedenco NZ companies. ANZ NZ alleged that the EBIT13 forecast covenant had been breached. That was not disputed.

[17] Soon afterwards, each of the banks made demands for payment of the full amounts owing by the New Zealand and Australian companies. On 30 October

2009, ANZ NZ’s New Zealand solicitors, Bell Gully, demanded payment of Cedenco

November 2009, Blake Dawson, solicitors in Melbourne, made demand on behalf of for ANZ Australia against Cedenco Australia, for both the Australia debt and that of Cedenco NZ that Cedenco Australia had guaranteed. The amounts claimed were something in the order of $AUD 21 million and $NZ 21 million, respectively. Payment was demanded by 5 pm on 4 November 2009.

[18] Neither Cedenco NZ nor Cedenco Australia could comply with the demands. On 9 November 2009, ANZ NZ appointed receivers over Cedenco NZ. ANZ

$AUD 93 million. Following payment of all its creditors, Cedenco Australia was left with a significant surplus.

[20] Around the same time, the business and assets of the New Zealand companies were sold by the New Zealand receivers to another Japanese company, Imanaka Ltd, for approximately $NZ 29.5 million. It was unclear, at that time, whether that would be sufficient to meet Cedenco NZ’s indebtedness to secured and unsecured creditors. However, the most recent liquidators’ report indicates that, unless any unforeseen creditors emerge, there is a surplus available for distribution to the shareholders of

[21] Although ANZ Australia has been repaid in full from the proceeds of sale of the Australian businesses, the Australian receivers have declined to resign and still hold significant funds. In New Zealand, the position is different. There was a surplus of approximately $NZ 67,000, which the receivers declined to hold. Instead, they paid that sum into the trust account of the New Zealand based solicitors for the New Zealand liquidators, pending resolution of any disputes between the liquidators and ANZ NZ as to entitlement to it. The New Zealand receivers have since resigned.

[22] The Australian liquidators wish to examine Ms Dekker about her role in dealing with the Australian companies, on behalf of ANZ Australia. They seek to explore the possibility of a claim being brought against ANZ Australia in respect of the losses caused by the need for Cedenco Australia to contribute to repayment of debt owed by Cedenco NZ.

[23] In my earlier judgment, I accepted that there were genuine reasons why the Australian liquidators would want to examine Ms Dekker. However, I pointed to countervailing discretionary considerations that might mean that an order should not

15 ANZ National Bank Ltd v Sheahan and Lock [2013] 1 NZLR 674 (HC) at para [111].

[111] Although there are genuine issues to be addressed on an examination of Ms Dekker, I must balance that against the fact that any examination would reveal information that might not otherwise be available to Cedenco Australia were those companies to issue proceedings against ANZ Australia in that jurisdiction, or ANZ NZ in New Zealand. I do so in the absence of expert evidence of relevant Australian law in relation to the circumstances in which Australian liquidators of a solvent company might be entitled to examine Ms Dekker, under applicable Australian domestic law, if she were within the Federal Court’s jurisdiction.

[24] Reflecting on the way in which I expressed myself in my earlier judgment,16 I must accept some blame for creating a degree of confusion about the nature and extent of the expert evidence required. It was unhelpful to identify different bases on which evidence might be received on each of the two options identified,17 without explaining why. As it is clear that some difficulties have arisen out of misunderstandings about what was intended in my original judgment, I intend to analyse the issue afresh and to refer to counsel’s arguments on the admissibility question only to the extent necessary to explain my reasons.

[25] The starting point is art 21(1)(d).18 That article is found in Schedule 1 to the Act which adopts, with some adaptations, the Model Law on Cross-Border Insolvency, prepared by the United Nations Commission on International Trade Law (UNCITRAL) and later approved by the General Assembly. While that provision is to be interpreted as part of New Zealand domestic law, Parliament has made it clear that the Courts should have regard to its international origins when construing its

terms.19 Plainly, it is desirable that the various States that have adopted the Model

Law should interpret its provisions as consistently as possible. A provision in the same terms as art 21(1)(d) has been enacted in the Australian legislation that adopted the Model Law, the Cross-Border Insolvency Act 2008 (Cth).

[26] In those circumstances, I consider that the discretion to be exercised in New

_{Zealand will be informed by the way in which an Australian Court would
be likely to}

respond if Ms Dekker had been resident in Australia and subject to the examination provisions of its Corporations Act 2001 (Cth).20 If it were likely that an Australian Court would make such an order, the case for obtaining a similar order in New Zealand under art 21(1)(d) is enhanced.

[27] I interpolate an explanation of the different approaches I took when identifying the two options available for the parties’ consideration when addressing the question of foreign law.21

[28] If an application had been made to the Federal Court of Australia and that Court was prepared to rule on it, it would have been improper, as a matter of comity, for this Court to endeavour to limit the considerations that it the Federal Court could take into account. This Court should not purport to advise the Federal Court on what factors are relevant to the exercise of its discretion to make an examination order under the Commonwealth statute. That is why I referred to both “the solvent position” of the three Australian companies and “any other relevant discretionary

considerations, such as the liquidators’ conduct”.22 The reference to the liquidators’

conduct was intended to refer to another aspect of the applications with which I dealt in my earlier judgment, namely the misuse of a transcript of Ms Dekker’s evidence at an examination before the Australian liquidators, in their capacities as liquidators of the two New Zealand companies.23

[29] The option of filing expert evidence24 was to provide assistance to me on the way in which an Australian Court might respond to such an application, so that could be taken into account in determining how to exercise the art 21(1)(d) discretion. The nature and scope of admissible evidence must be linked to the issue that I have to consider. In terms of New Zealand law, expert evidence that is likely to provide

_{“substantial help” to a fact-finder “in understanding
other evidence in the proceeding}

[30] Foreign law must be proved as if it were a fact.26 Generally, it is established through the provision of evidence from experts in the relevant area of law. Proof of foreign law is opinion evidence, for the purposes of the Evidence Act 2006:27 a witness expresses an opinion on the current state of the foreign law. That opinion evidence is admissible as long as it meets the threshold test set out in s 25(1) of the Evidence Act.28 The witnesses must explain the basis for their views, as opposed to offering conclusory opinions only.29 It is generally accepted that care must be

_{exercised in using material produced by expert witnesses about foreign
law.}30

[31] In New Zealand, the admissibility of expert evidence on foreign law is governed by ss 25 and 144 of the Evidence Act. They provide:

(1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding.

(3) If an opinion by an expert is based on a fact that is outside the general body of knowledge that makes up the expertise of the expert, the opinion may be relied on by the fact-finder only if that fact is or will be proved or judicially noticed in the proceeding.

30 Neilson v Overseas Projects Corporation of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 (HCA) at para

(1) A party may offer as evidence of a statute or other written law, proclamation, treaty, or act of State, of a foreign country—

	(a) (b)	evidence given by an expert; or a copy of the statute or other written law, proclamation,
		treaty, or act of State that is certified as a true copy by a person who might reasonably be supposed to have the custody of the statute or other written law, proclamation, treaty, or act of State; or
	(c)	any document containing the statute or other written law, proclamation, treaty, or act of State that purports to have been issued by the government or official printer of the country or by authority of the government or administration of the country; or
	(d)	any document containing the statute or other written law, proclamation, treaty, or act of State that appears to the Judge to be a reliable source of information.
(2)	In ad	dition, or as an alternative, to the evidence of an expert, a party

or as evidence of the interpretation of a statute or other written law or a proclamation of a foreign country, a document—

foreign country, or of the unwritten or common law of a foreign country, any publication—

(b) that appears to the Judge to be a reliable source of information about the law of that country.

(4) A Judge is not bound to accept or act on a statement in any document as evidence of the law of a foreign country.

(5) A reference in this section to a statute of a foreign country includes a reference to a regulation, rule, bylaw, or other instrument of subordinate legislation of the country.

(6) Subpart 1 of Part 2 (which relates to hearsay evidence) does not apply to evidence offered under this section.

Section 144(1)(a) recognises the availability of expert evidence as a means of proving the various categories of foreign law listed in the opening phrase of s 144(1). Nothing in s 144 renders the opinion and expert evidence rules inapplicable to the section. Accordingly, evidence offered under s 144(1)(a) must still comply with the substantial helpfulness test in s 25(1).

[33] Both Professor O’Donovan and Professor Fisher have referred me to s 596B of the Corporations Act 2001 (Cth), which provides the jurisdictional basis on which the Federal Court may exercise powers to summon a person for examination before it. That evidence is admissible, on the basis that it states the content of the relevant law. Section 596B provides:

(i) has taken part or been concerned in the examinable affairs of the corporation and has been, or may have been, guilty of misconduct in relation to the corporation; or

(ii) may be able to give information about examinable affairs of the corporation.

[34] In Allstate, Lindgren J was not convinced that an expert’s opinion on the application of foreign law was admissible, notwithstanding abolition of the “ultimate issue” rule in Australia by its Evidence Act 1995 (Cth). Section 80(a) of that Act stated that evidence of an opinion was not inadmissible only because it was about an

There are various ways of expressing support for the conclusion which I have reached. First, the use in s 80(a) of the words “only” and “about” signify that the provision leaves untouched the fundamental common law principle which excludes expert legal opinion evidence as intruding upon the essential judicial function and duty to which I referred earlier. Secondly, the

expression “an ultimate issue” does not catch “the ultimate legal issue” for decision by a court. Thirdly, no issue arises under s 80 because s 55 is not satisfied since the evidence tendered is not evidence which could rationally affect the assessment of the probability of the existence of a fact in issue. Fourthly, reference to the legislative background shows that the reference in s 80(a) to the “ultimate issue” was intended to refer to opinion by non-legal expert witnesses or non-expert witnesses on an ultimate issue of fact expressed in language which applies a legal standard.

[35] As indicated earlier,33 the High Court of Australia has taken a more nuanced approach to the admissibility issue. In Neilson v Overseas Projects Corporation of Victoria Ltd,34 Gummow and Hayne JJ said:35

Expert evidence about foreign law, like any other form of expert evidence, presents questions about what limits there are to the evidence that may be adduced from an expert witness. The Evidence Act 1995 (Cth), and equivalent statutes, provide in s 80 that evidence of an opinion is not inadmissible only because it is about a fact in issue or an ultimate issue. No provision of that kind applied at the trial of this matter. It follows that in this case, where a provision like Art 146 was in issue, there may have been some question about what evidence an expert might give to elucidate how a Chinese court would apply that provision.

It has been held that expert evidence about foreign law can be divided into evidence about the content of the law and evidence about its application to the facts of the particular case. The former is said to be admissible, the latter not. But as National Mutual Holdings Pty Ltd v Sentry Corporation reveals, a distinction between content and application evidence is not to be understood as precluding an expert from examining in evidence how a power or discretion would be exercised by a foreign court.

An overly abstract articulation by an expert of a foreign court’s approach to the exercise of a power or discretion will be of little assistance to the tribunal of fact. Yet the closer the examination comes to the particular set of facts under consideration in the instant case, the closer the expert may be said to come to offering an opinion about how a foreign court, confronted by those facts, would decide the case. But in doing that, does the expert give evidence that is inadmissible?

In the National Mutual Case, it was decided that “[w]here the relevant rules and principles of foreign law are so framed as to confer discretions upon the courts which administer them ... evidence is receivable as to the manner in which those discretions are exercised, with reference to any pattern or course of decision”. Evidence of that kind was held not to trespass upon the function of the court of the forum to decide the effect of the application of the

34 _{Neilson v Overseas Projects Corporation
of Victoria Ltd [2005] HCA 54; (2005) 223 CLR 331 (HCA).}

rules and principles of the law of the foreign jurisdiction to the particular facts and circumstances of the instant case.

[36] Given the purpose for which I am seeking expert assistance, the proposition approved in the final paragraph of the extract from Gummow and Hayne JJ’s judgment is applicable. Evidence about the manner in which a discretion may be exercised, with reference to any pattern or course of decision, does not trespass upon the function of the domestic Court to decide how the foreign law should be applied to the particular facts and circumstances of the case before it.

[37] In light of the approach taken by the High Court of Australia in Neilson, I accept the basis on which Einstein J, in Idoport, distinguished the Allstate approach. Einstein J said:

paradigmatic example of the sort of evidence that s 80 was concerned to make admissible, where prior to the Act it was inadmissible, provided the evidence is otherwise admissible under the Evidence Act.

[38] A similar approach to other forms of expert evidence has been taken in New Zealand. A good example is Attorney-General v Equiticorp Industries Group Ltd (in Statutory Management).36 In that case, the Court of Appeal considered a challenge to a trial Judge’s decision to admit evidence from a London solicitor about whether a practitioner from New Zealand had breached duties owed to his client, in the context of a complex commercial transaction. The Court of Appeal upheld the trial Judge’s decision to admit the evidence. Citing Murphy v R,37 Cooke P, for the Court, said:38

... The law [on the ultimate issue rule] has become more relaxed, as he said. In Murphy v R (cit sup) at p 110 Mason CJ and Toohey J said that it is doubtful that there is now an absolute rule precluding an expert witness from expressing a view as to the ultimate issue. We too doubt whether there is, but in any event Mr Gerrard's evidence falls a little short of that. As to helpfulness, we accept the submission of Miss Elias that the test is not as restrictive as suggested by Dawson J in Murphy, and we respectfully prefer the broader majority opinions in that case so far as they deal with the subjects on which expert evidence may be admitted. It would be a churlish appellate Court that denied a trial Judge the advantage of evidence which he regarded as helpful to him. In our view the present law does not require us to do so. It must be acknowledged that Mr Gerrard's evidence can be characterised as expert argument as much as expert opinion, but that is nothing new. In the relatively few civil cases now tried by jury in New Zealand, firm directions by the Judge should be enough to counter any supposed (not necessarily rightly in a sceptical world) tendency of the jury to be overawed by experts. One can be confident that the Judge here will not be overawed, and will be able to place expert evidence in a proper perspective, having regard to the primary facts ultimately proved.

[39] That approach to the ultimate issue can be contrasted with observations made by the Supreme Court in Penny v Commissioner of Inland Revenue39 in which the Court deprecated the use of expert witnesses who did no more than to provide advance notice of what counsel would ultimately say in submissions. The line

36 Attorney-General v Equiticorp Industries Group Ltd (in statutory management) [1995] 2 NZLR

135 (CA). This judgment was given more than 10 years before the Evidence Act 2006 came into force and abolished the “ultimate issue” rule in this country. See: Evidence Act 2006, s 25(2)(a), set out at para [31] above.

37 _{Murphy v R [1989] HCA 28; (1989) 167 CLR 94 (HCA) at
110 (Mason CJ and Toohey J).}

38 Attorney-General v Equiticorp Industries Group Ltd (in statutory management) [1995] 2 NZLR

39 Penny v Commissioner of Inland Revenue [2012] 1 NZLR 433 (SC) at para [32].

admission might be distinctly arguable, protections lie in the weight that a Judge

[41] I would not be assisted by either expert expressing an opinion on the order he thinks the Australian Court might make on a hypothetical application. That is because there are insufficient factual findings in my earlier judgment on which the experts could safely rely to express an opinion, one way or the other. Counsel will, no doubt, make submissions on the facts on which I need to rely in exercising the art

21(1)(d) discretion. They may (indeed, are likely) to go beyond those discussed in my earlier judgment. I will take the expert evidence into account, together with other relevant factors, when I decide the substantive application.

[42] Finally, I consider a submission made by Mr Chisholm that the evidence offered by Professor Fisher does not meet the threshold for admissibility under

_{s 25(1). Mr Chisholm submitted that I was unlikely “to obtain
substantial help from}

40 As to the “forensic advantage” point, see ANZ National Bank Ltd v Sheahan and Lock [2013] 1

the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding”.41

[43] As counsel acknowledged, expert evidence on foreign law is different to other forms of expert evidence. It is designed to provide the Court with a non- binding opinion on the state of the law of a particular jurisdiction. Nevertheless, such evidence is likely to be of substantial help to me in determining a fact on which I wish to rely in exercising the art 21(1)(d) discretion; namely, the likely outcome of application of Australian law. Given the purpose for which the expert evidence is sought, I consider that the likely outcome in Australia is a “fact” I must determine for the purposes of s 25(1).

[44] It is clear that counsel have proceeded on different assumptions in determining the nature and scope of the expert evidence that each of the respective parties wish to call. Primarily, that is due to the infelicitous way in which I expressed myself in my earlier judgment.

[45] Rather than striking out parts of Professor Fisher’s evidence, it is preferable to start afresh. That will entail striking out the evidence of both Professor O’Donovan and Professor Fisher so that they can be recast and filed on the basis of the issues on which I am seeking assistance.42

[46] For those reasons, I strike out the affidavit evidence of Professor O’Donovan

[47] Counsel may recast, file and serve affidavits on foreign law addressing the three aspects to which I have referred.43

[48] I establish the following timetable for the filing and service of affidavits on those points:

(a) Any affidavits on behalf of the Australian liquidators shall be filed and served on or before 10 May 2013.

(b) Any affidavits on behalf of ANZ NZ and Ms Dekker shall be filed and served on or before 31 May 2013.

[49] The Registrar is directed to set the art 21(1)(d) application down for a defended hearing on the first available date after 14 June 2013. One day should be allocated. The date shall be fixed in consultation with counsel.

High Court of New Zealand Decisions

Sheahan v ANZ Bank NZ Ltd [2013] NZHC 888 (26 April 2013)