Aurora Fisheries Limited v Hozumi HC Nelson CIV 2010-442-511

[2011] NZHC 493

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2010-442-511

BETWEEN  AURORA FISHERIES LIMITED Plaintiff

ANDAKIRA HOZUMI Defendant

Hearing:         18 May 2011

(Heard at Wellington)

Counsel:         M J Logan and H M Campbell for Plaintiff

J M Fitchett and C A Morice for Defendant

Judgment:      18 May 2011

JUDGMENT OF RONALD YOUNG J

ON APPLICATION TO VARY FREEZING ORDER

Introduction

[1]      This is an application by the plaintiff to extend a freezing order with respect to a property owned by Mr Hozumi.  The plaintiff is suing Mr Hozumi arising from false fishing catch returns allegedly completed by Mr Hozumi relating to fish taken under the authority of the plaintiff’s permit.   The plaintiff has sought summary judgment.

[2]      The freezing order is due to expire today 18 May 2011.  The defendant did not oppose the continuation of the freezing order but sought an order that he be allowed to secure an advance of $30,000 against the property, the subject of the freezing order to enable him to fund his side of this litigation.  The plaintiff opposed

the defendant’s application to vary the freezing order.

AURORA FISHERIES LIMITED V AKIRA HOZUMI HC NEL CIV 2010-442-511 18 May 2011

[3]      At the hearing today I adjourned the application for variation of the freezing order until next week in the Nelson High Court, 24 May 2011.  The reason for the adjournment was that the defendant had not filed any affidavit as to his financial circumstances.  Such an affidavit seemed to me fundamental to a consideration of whether the freezing order should be varied. The parties agreed.

[4]      Counsel for the defendant/applicant will endeavour to obtain an affidavit from Mr Hozumi (who resides in Japan) and present that to the Court by next week. If the matter cannot be heard next week in Nelson then I imagine an early fixture could  be  given  in  the  Wellington  Court.    Mr Fitchett  expressed  concern  about whether such an affidavit could be appropriately sworn before next week.   High Court Rule 9.86 permits a broad range of people to swear such an affidavit overseas.

[5]      In  the meantime, the appropriate order is  that  the current  freezing order should continue in force until further order of the Court.  The freezing order can then be varied or cancelled as Judges or Associate Judges of the High Court think fit.

[6]      Mr Fitchett also raised as he had in his submissions filed prior to this hearing, the question of whether Ocean Law had a conflict of interest which would prevent them from acting on behalf of the plaintiff.  I advised counsel that the appropriate course was for a formal application to be made by Mr Hozumi if he wished the Court to consider whether it should direct Ocean Law not act for the plaintiff.  Mr Hozumi will have to support his allegations by evidence in an affidavit including all documentary  evidence  which  he  considers  appropriate.     That  will  then  give Ocean Law the opportunity to respond and the matter can then be resolved should the parties be unable to agree by a Judge.

[7]      Mr Fitchett  mentioned  part  of  the  difficulty  in  making  such  a  formal application was Mr Hozumi’s current impecuniosity.   He said in particular filing fees.  In the circumstances I am prepared to give Mr Hozumi an exemption from any filing fee that may be required with respect to any application that Ocean Law no longer act for the plaintiff.

[8]      In summary, therefore:

(a)       the current freezing order is continued until further order of the Court; (b)     Mr Hozumi’s  application  to  vary  the  current  freezing  order  is

adjourned to the Nelson High Court, 24 May 2011;

(c)      should Mr Hozumi wish to make an application that Ocean Law be prohibited from acting for the plaintiff then he will need to file an application  and  full  affidavit  explaining  the  circumstances  that support such an application.  Any filing fee for such an application is waived.

[9]      Costs on today’s hearing are reserved.

Ronald Young J

Solicitors:

M J Logan, Partner, Ocean Law, Nelson, email:  [email protected]
J M Fitchett, Principal, Rout Milner Fitchett, Nelson, email:  [email protected]