Appeal court weighs evidence on material info, plausible alternatives
New Zealand’s Supreme Court has refused to allow a Pushpay Holdings Ltd executive to challenge the denial of his appeal against a jury finding him guilty of insider conduct under s 244 of the Financial Markets Conduct Act 2013.
In Huljich v R, [2025] NZSC 99, the applicant was an executive of Pushpay, a publicly listed company. In April 2018, a Pushpay co-founder informed the applicant that he was considering departing from Pushpay and selling his nine percent shareholding.
At trial, the Crown alleged that the applicant advised or urged a trust’s principal beneficiary or trustees to sell the trust’s Pushpay shares on 3 May 2018 before the information became public, despite recognising that a reasonable investor would expect the divulged information to affect Pushpay’s share price materially.
In June 2018, a bookbuild process led to the sale of the co-founder’s shares, with some investors invited to participate in reallocating the shares during a trading halt.
At trial, the Crown’s expert provided evidence supporting that a reasonable investor would regard the information the applicant disclosed as material, given that they would expect the shares to sell at a material discount in a bookbuild.
When the New Zealand Court of Appeal dismissed the applicant’s conviction appeal, he requested leave to appeal based on three errors. Specifically, he alleged that the appeal court:
The Supreme Court of New Zealand dismissed the application seeking leave to appeal upon finding no evidence of an unreasonable jury verdict or apparent miscarriage of justice.
The Supreme Court determined that the appeal court made no error in its approach to the evidence. The Supreme Court concluded that it closely assessed the evidence on the materiality of information and any plausible alternatives, such as the possibility that the Pushpay co-founder might not leave or the shares would not be sold via bookbuild.
The Supreme Court ruled that the appeal court correctly concluded that the jury could accept the evidence of the Crown’s expert that the anticipated bookbuild discount when it occurred in June 2018 meant the information was material as of 3 May 2018.
The Supreme Court noted that the proper approach to the offence of insider conduct under the Financial Markets Conduct Act could be a matter of general or public importance and general commercial significance.
