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A liquidator found liable for breach of confidence and invasion of privacy

“To say there is bad blood between David Henderson and Robert Walker is an understatement. From the time Robert Walker was appointed liquidator of Property Ventures Ltd (PVL) on 27 July 2010, he has been on a collision course with David Henderson, former director of companies in the PVL group. Frustrated by PVL’s liquidation being stayed, when Mr Walker was appointed liquidator of five other companies in the group, he set about his task with gusto.”

So commenced this long judgment of the New Zealand High Court: Henderson v Walker [2019] NZHC 2184.

Justice Thomas continued to explain that Walker, fearing that documents relevant to the liquidations might be unlawfully accessed following the 2011 Christchurch earthquake, was instrumental in the police seeking and obtaining warrants to seize records of Henderson’s companies.

“It is what Mr Walker did on receipt from the police of [a] tape drive and a laptop …that is the subject of these proceedings”.

Henderson claimed that Walker,

“fuelled by malice towards him, provided his personal information to the Inland Revenue Department (IRD), the Official Assignee [as trustee of Henderson’s bankruptcy] and other third parties”

and thereby not only breached his rights to privacy and confidence in confidential information but also breached a number of duties associated with his office as liquidator and as an officer of the Court.

Henderson sought declarations in respect of six causes of action, including $100,000 in general damages for personal anguish, humiliation and stress.

Breach of confidence and invasion of privacy

His main claims were for breach of confidence and invasion of privacy, the latter being a separate tort in NZ. Henderson succeeded in both these claims.

The invasion of privacy involved Walker sending a flash drive to a solicitor at the office of the Official Assignee handling Henderson’s bankruptcy. It contained not only relevant information, but also personal private documents of Henderson. These included personal emails between him and his wife about issues in their marriage, other emails about marital breakdowns, health, weight loss, and fitness, emails relating to medical advice, photographs of family, friends and pets, and privileged material. The Judge upheld this claim and a declaration to that effect was enough.

Walker as liquidator was also found liable for breach of confidence in relation to the release of a flash drive, the sending of an email and discovery in related proceedings. Damages of $5000 were awarded for this.

Other claims

Henderson’s other causes of action in conversion, misfeasance in public office, breach of statutory duty, and contempt were analysed in detail, but dismissed.

In an earlier decision, Justice Hinton opened his judgment explaining that the case concerned:

“the powers of the Official Assignee and the right to privacy, and where the twain shall meet”.

Or, as the Judge went on, “put more drily”, the issue was whether the Official Assignee’s demand under law for production of documents on the laptop of Henderson and the subsequent review of some of those documents, breached Henderson’s rights under the New Zealand Bill of Rights Act 1990, the answer being yes. Questions were also raised about the conduct of an officer of the Official Assignee in retaining the personal private documents. Henderson v Attorney-General [2017] NZHC 606.

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