Baker v Libeau

[2024] NZHC 293

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2021-425-17

[2024] NZHC 293

BETWEEN

ROBERT DARCY BAKER

Plaintiff

AND

JEAN-MICHEL LIBEAU

First Defendant

LINCSPUN LIMITED
Second Defendant

LIBEAU LIMITED

Third Defendant

Hearing:

17 - 20 April 2023

further memoranda up to 30 August 2023

Appearances:

Plaintiff – Self-Represented with N Baker as McKenzie Friend First Defendant – Self Represented with S E Johnston as McKenzie Friend

Second and Third Defendants - Unrepresented

Judgment:

23 February 2024

JUDGMENT OF EATON J

This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

BAKER v LIBEAU [2024] NZHC 293 [23 February 2024]

Introduction

[1]    In 2015, the plaintiff, Mr Baker expeditiously committed a significant investment into a commercial opportunity presented to him by Mr Libeau. Mr Libeau intended to set up a company which would own the intellectual property of other textiles companies he controlled. The two recorded an agreement in respect of the investment wherein a new umbrella company, Lincspun Tech Ltd (Lincspun Tech), was to acquire the intellectual property and royalty income of these other companies.

[2]    Mr Baker applies for relief from this Court, arguing that his investment was misappropriated, and the contract breached.

Background

[3]    The first defendant, Mr Libeau, is a director and shareholder of several companies with interests in textile manufacturing technology which they licence out. He is the sole director of the second defendant, Lincspun Ltd, a company involved in yarns and fabrics. He is also the sole director and shareholder of the third defendant, Libeau Ltd who is the majority shareholder of Lincspun Ltd.

[4]    In 2015, Mr Baker overheard Mr Libeau discussing Lincspun technology with associates in a Wānaka café.  Following further discussion between the two men,   Mr Baker had decided the intellectual property behind Lincspun’s business presented an investment opportunity worth exploring. Mr Libeau had intimated in discussions that the intellectual property controlled by his companies had a potential value exceeding USD 10,000,000. Mr Libeau planned on incorporating a company which would own all the Lincspun intellectual property, Lincspun Tech.

[5]    Mr Baker and Mr Libeau entered into a contract in May 2015, the terms of which are recorded in an email of 4 May. The email recorded the intention to set up a new “umbrella company” which would “acquire all intellectual property and royalty income of Mr Libeau’s existing LincSpun companies” except where that royalty income was to cover expenses of running specific existing companies. In essence, the company was to serve as an intellectual property holding company managing existing royalty licensing agreements owned by Mr Libeau and his other companies.

[6]    The company, Lincspun Tech, was incorporated on 21 July 2015, though was set up in New Zealand rather than the initially planned Singapore. 10,000 shares were issued.

[7]    Mr Baker agreed to invest USD 150,000 in consideration for a 20 per cent shareholding in Lincspun Tech. Mr Libeau held the remaining 8,000 shares in Lincspun Tech. Mr Libeau transferred his shares to Libeau Ltd on 11 September 2015. The contract recorded the investment was to be “mainly” applied for patent and company costs to take the company “to its next level”. The contract provided that  Mr Baker would initially pay USD 50,000 and retain the remaining USD 100,000 “while new company registration and bank accounts are set up” and then invest that amount.

[8]    The initial investment was split over three payments using the intermediary of a New Zealand currency broker. Mr Baker made his first payment in mid-May 2015. Prior to the third payment, Mr Libeau sent Mr Baker a text, requesting the tranche and stating he would open an account for Lincspun Tech and transfer the money into it. The first two payments were retrieved by Mr Libeau and placed into Libeau Ltd, rather than Lincspun Tech or another Lincspun company. The final payment was not deposited into a Lincspun Tech account. USD 10,000 of the original USD 150,000 investment was converted by Mr Libeau into Canadian and Australian Dollars, and euros. This sum, according to Mr Baker, does not appear on any bank statements supplied by Mr Libeau. Mr Libeau did not keep Mr Baker abreast of how the funds were being channelled.

[9]    The account for Libeau Ltd, which previously contained only minor funds prior to the injection of Mr Baker’s capital, shows significant expenses, some of which are personal expenses of Mr Libeau, transfers of money to Lincspun Ltd, transfers to an investment account of Libeau Ltd, and other expenses.

[10]   In 2016, Mr Baker increased his shareholding in Lincspun Tech to 26 per cent following an investment of USD 10,000.

[11]   On 11 July 2015, several agreements were entered into between different entities. Lincspun Ltd assigned intellectual property relating to a European patent to Lincspun Tech. Libeau Ltd assigned intellectual property relating to two US patents to Lincspun Tech. Mr Libeau assigned intellectual property relating to prospective US patents to Libeau Ltd.

[12]   Importantly, and unbeknownst to Mr Baker, Lincspun Tech and Lincspun Ltd entered into an exclusive global licence agreement whereby Lincspun Tech agreed to supply Lincspun Ltd with the right to use and acquire royalty income for all intellectual property associated with the Lincspun trademark. This agreement was made prior to the formation of Lincspun Tech, is signed by Mr Libeau in his capacities as director of both companies, and without the knowledge of Mr Baker. The agreement provides for a royalty salary to be paid by Lincspun Ltd to Lincspun Tech. Clause 8 lays out the terms of this royalty salary which was to reflect a percentage of “actual or notional invoice royalty” after deductions of specified costs.

[13]   Several licensing agreements were entered into by Lincspun Ltd with third parties in relation to the Lincspun technology.

[14]   Between July 2016 and June 2020, Lincspun Tech appears to have not received all royalty income in respect of Lincspun technology. Lincspun Ltd received significantly more in the form of intellectual property royalties over that same period.

[15]   In a memorandum of 2 August 2022, Mr Libeau records royalty income was used to grow the LincSpun Ltd business globally by engaging with potential international opportunities.

[16]   Mr Libeau also  used  Lincspun  Tech  to  purchase  a  personal  vehicle  (Ford Everest) on a hire-purchase agreement which the company also paid interest expenses for. Mr Libeau took over financial responsibility for the vehicle after being confronted by Mr Baker though appears to have recorded this as a liability of Lincspun Tech in the 2018 financial statement. A contemporary text from Mr Libeau records he saw the vehicle as a salary, something  he  had  not  drawn  from  Lincspun Tech. In response to interrogatories, Mr Libeau stated the finance expenses

related to the purchase of the Ford Everest for the use of Mr Baker in a company capacity and, as Mr Baker advised he did not require the vehicle, Mr Libeau acquired it and took responsibility for ongoing expenses.

Representation and procedural history

[17]   The claim that is the subject of these proceedings was first made by Mr Baker on 8 March 2021 when he cancelled the contract by giving notice through his solicitors.

[18]   While both parties were originally legally represented; since then, representation has been intermittent, and Mr Libeau and Mr Baker were unrepresented for the hearing. Mr Baker was represented for much of the proceedings until early- 2023. Mr Libeau, while originally represented, was unrepresented for a substantial period of the proceedings until engaging counsel in August 2022. He once again began self-representing in March 2023. His counsel at the time also applied successfully to withdraw from acting for the second and third defendants. While a corporation has no right to carry on proceedings except through a  solicitor, it was held that allowing  Mr Libeau to do so was in the interests of justice. 1 Both parties were assisted at the hearing by McKenzie Friends.

[19]   Getting adequate discovery from Mr Libeau proved to be an arduous process. In several minutes of Associate Judge Lester, the Judge noted continued failures by Mr Libeau to provide relevant documents in his control and in the context of either weak or non-existent explanations for their non-discovery.

[20]   Broad interim freezing orders were made by Mander J burdening Mr Libeau, those orders were made final, and their  discharge refused  on  an  application  by  Mr Libeau to Nation J.

[21]   Security for costs in the sum of $30,000 was to be paid over two equal tranches by the defendants after concerns were raised about Mr Libeau’s impecuniosity. Counterclaims by Mr Libeau were stayed due to the non-payment of this security.

1      RE G J Mannix Ltd [1984] 1 NZLR 309 (CA); and Burgess v The Raindance Company New Zealand Ltd [2013] NZHC 930.

Parties’ positions

Mr Baker

Pleadings

[22]   An amended statement of claim, filed at a time when Mr Baker was represented, pleaded three causes of action:

(a)breach of contract (Contract and Commercial Law Act 2017 (CCLA));

(b)misrepresentation (CCLA); and

(c)oppressive and unfairly discriminatory conduct (Companies Act 1993).

[23]   The pleadings allege it was an impliedly essential term of the contract that Lincspun Tech would acquire all intellectual property and royalty income from other Lincspun companies. Those companies being:

(a)Lincspun Ltd (NZ);

(b)Lincspun yarns PTY Ltd (Aus);

(c)Lincspun Yarns Europe UG (Germany);

(d)Lincspun HK Ltd (Hong Kong); and

(e)Lincspun Technology Incorporation (USA).

[24]   The refusal to assign all intellectual property and royalty income was pleaded to constitute a breach of an essential term of the contract. A further pleaded breach is Mr Libeau misappropriated Mr Baker’s  investment  by  not  applying  it  to Lincspun Tech and instead diverting it to an unrelated company, Libeau Ltd, and using it for personal expenses.

[25]   As to misrepresentation, Mr Baker says he was induced into investing in Lincspun Tech by a misrepresentation by Mr Libeau as to his intention concerning intellectual property and royalty income. As noted above, Mr Baker says the intellectual property and royalty income was not treated as was earlier represented.

[26]Mr Baker pleads he cancelled the 4 May 2015 contract on 8 March 2021.

[27]   Oppressive and unfairly discriminatory conduct was alleged under s 174 of the Companies Act. This is based on the use of funds for personal use, refusal to perform elements of the contract, and breach of director’s duties under s 131 of the Companies Act.

[28]   At no stage did the pleadings quantify the relief sought despite, as noted below, the Court on 31 October 2022 recording the need for particularisation. Compensation, damages, and acquisition of shares were all pleaded in only general terms.

Hearing

[29]   At the hearing, Mr Baker focused on the alleged breach of contract and oppressive conduct under s 174(1), with the thrust of discussion concerning unwinding the contract.

[30]   Mr Baker placed some emphasis on there allegedly having been a major transaction by Lincspun Tech in entering into an exclusive global licensing agreement with Lincspun Ltd which was conducted in breach of the Companies Act. He sought the setting aside of the agreement on that basis. He argued further that the business of the companies was carried on in breach of that global licensing agreement.

[31]   In closing submissions, Mr Baker sought a broad array of orders from the Court. He asked the Court to:

(a)notify the Companies Office and other government branches of relevant duty breaches by Mr Libeau;

(b)set aside the global licensing agreement;

(c)require Mr Libeau to purchase his 26 per cent shareholding in Lincspun Tech for USD 2,600,000 on the basis of the USD 10,000,000 that Mr Libeau had previously said the intellectual property could become worth;

(d)require Mr Libeau to return his investment, with interest applied from the date of initial investment until payment;

(e)require Mr Libeau to pay him 26 per cent of royalties received by Lincspun Tech between 2015 and 2023;

(f)indemnity costs of around $100,000;

(g)compensation under s 174 for loss of royalty income and emotional and mental stress; and

(h)should Mr Libeau default  on the above or go bankrupt, award to     Mr Baker the intellectual property of Lincspun Tech and pending intellectual property due to Lincspun Tech.

[32]   In seeking certain elements of relief, Mr Baker faced evidential difficulties. All submissions based on value such as the request for Mr Libeau to buy out his shares for $2,600,000, were unsupported by clear evidence as to the value of the company. That plea for relief relied on Mr Libeau’s comment made in 2015 in a Wānaka café that the intellectual property could be worth upwards of USD 10,000,000. Reliable and up to date valuation evidence of Lincspun Tech was not provided.

[33]   As noted above, Mr Baker also sought a payment of royalties received by Lincspun Tech which was commensurate with his 26 per cent shareholding. He presented financial information for Lincspun Tech from 2016 to 2020. They demonstrated incoming royalties of $173,923.

[34]   While an issue around an $8,800 loan was raised in submissions by Mr Baker and during examination, this was not contained in the pleadings and fell away in the course of the hearing.

Mr Libeau

[35]   Mr Libeau argued the contract only provided for Lincspun Tech to get income derived from intellectual property and royalty rather than ownership of all information patents, know-how, copyrights, and other related property. His statement of defence further pleads Mr Libeau did not misappropriate the USD 150,000. Mr Libeau argued there was no basis for the funds to be paid to Lincspun Tech or any Lincspun company because the recipient of the payment was not specified in the contract drafted by    Mr Baker. The spending of monies in the Libeau Ltd account is said to be irrelevant to Mr Baker as he is not a director or shareholder of Libeau Ltd. It says any royalty income not transferred to Libeau Tech was applied to cover valid expenses under the agreement. Mr Libeau argued that no valid ground of cancellation exists.

[36]   In his closing submissions, Mr Libeau rather unexpectedly made an offer to Mr Baker. He offered a one-off payment of $282,000 for Mr Baker’s shareholdings in Lincspun Tech and Lincspun HK Ltd, with attached conditions that Mr Baker resign as a director of Lincspun HK Ltd and costs lie where they fall. This, Mr Libeau said, reflected a conversion to New Zealand Dollars of the USD 160,000 investment and allowed for interest at approximately 3  per cent  over the five  and a half years of  Mr Baker’s investment before he cancelled the contract in 2021.

Post-hearing events

[37]   Following the offer in Mr Libeau’s closing submissions, the parties entered into discussions in an attempt to resolve the dispute.

[38]   On 1 May 2023, I issued a minute explaining to the parties how a settlement agreement would be recognised by the Court and what sort of form it may take. I recorded Mr Libeau had indicated he could pay a settlement sum by 30 June 2023.

[39]   On 2 May, Mr Baker contacted the Court with questions on the extent to which a settlement would bar him from bringing other claims (such as his s 174 claim) and attempting to further argue aspects of his case. I issued a minute explaining any communications must be copied to the other party, and there was no scope at this stage for further submissions or evidence. The minute also noted the privative effect of

settlement depends on the terms eventually agreed between the parties. I indicated that, should a judgment be issued in favour of Mr Baker, interest at 5 per cent was likely to be applied alongside a costs award of around $40,000 (being an estimate of scale costs).

[40]   Mr Libeau, in an email to the Court and Mr Baker of 4 May, said an offer would be forthcoming within the next week. On 19 May, Mr Baker raised a concern there had been no further contact consequent to that email. I subsequently issued a minute explaining it was important the issue not drag on. Mr Libeau responded he was working on an offer but was encountering issues with the freezing order in place. He advised an offer would be prepared being subject to the freezing order being removed. A day later, he sent another email advising Lincspun had made offers prior to the hearing to Mr Baker which were all rejected.

[41]   On 26 May, Mr Baker disclosed to the Court a further without prejudice settlement offer made by Mr Libeau, including an offer to pay costs.

[42]   On 9 June 2023, I issued a minute recording an understanding that agreement between the parties was proving difficult to reach as Mr Baker took the position that judgment was possible in his favour as regards to both royalties and dividends as well as the interest on his investment from the date of that investment. The parties were nonetheless granted a further opportunity to engage but no resolution was reached.

[43]   By 9 June, Mr Libeau had re-engaged solicitors. He sought a discharge of the freezing order on the terms that $400,000 would be held in the trust account of  Haigh Lyon Lawyers Limited pending agreement of the parties or an order of the Court, and the $30,000 currently held in that trust account be applied to the current outstanding legal costs of the defendants.

Findings on liability

[44]   Mr Baker’s pleaded causes of action under the CCLA and the Companies Act rely on the same conduct being in short, the misapplication of Mr Baker’s US 150,000 investment. However, as mentioned the financial relief sought in the statement of claim is not particularised; the statement of claim simply sought orders under s 43 of

the CCLA for the payment of damages to Mr Baker and under the Companies Act that Mr Baker’s shares in LincSpun Tech be acquired by Mr Libeau or Libeau Ltd and a further order that Mr Libeau or Libeau Ltd “pay compensation to Mr Baker, the sum of which to be quantified before trial.”

[45]   The core allegation in relation to Mr Baker’s investment is it was misappropriated by Mr Libeau who used the funds for his own benefit. Mr Libeau denies that allegation.

[46]   The 4 May 2015 contract contained the following provisions in relation to the application of Mr Baker’s investment:

The new company will acquire all intellectual property and royalty income of Mr Libeau’s existing LincSpun companies. Except royalty income to cover all expenses of running the existing NZ and European companies.

The 20% share investment of a new LincSpun company will be purchased with an investment of $150000 USD. The investment will mainly go to pay for Patent and Company costs to take the new company through to its next level.

The first payment of $50000 USD will be transferred into a New Zealand bank account of a LincSpun Company controlled by Mr Libeau. The remaining

$100000 will be held by Mr Baker while new company registration and bank accounts are set up and the funds are available immediately on completion of this.

[47] As recorded above, Mr Libeau does not dispute that he did not, at least in relation to what is referred to as the “remaining $100000”, hold these funds intact while the new company, that is LincSpun Tech, was incorporated and its bank account opened. I am satisfied the final paragraph of the contract extract set out at [46] above required Mr Libeau to hold the USD $100,000 pending a bank account for LincSpun Tech being opened at which time those funds would then be paid into that company.

[48]   This did not occur. I find this was a breach of contract by Mr Libeau which entitled Mr Baker to cancel  the  4 May 2015  contract.2  Accordingly,  I  conclude Mr Baker’s cancellation of the contract was valid. The real issue, however, is what

2 Contract and Commercial Law Act 2017, s 36.

relief should be granted given the absence of any pleading as to damages and the absence of any expert evidence in respect of quantum.

Relief

[49]   Mr Libeau’s offer recorded above is, of course, significant. Mr Libeau at no time suggested the absence of particularised heads of loss disentitled Mr Baker from relief. Mr Libeau appears to have construed the relief sought by Mr Baker in his claim, that is the payment of compensation and the transfer of shares by Mr Baker, as seeking the unwinding of the share purchase pursuant to the 4 May 2015 contract.

[50]   Whether relief is approached under the CCLA or under the Companies Act, similar principles apply. Under s 43(1) of the CCLA, the Court may grant relief “if it is just and practicable to do so”. Under s 174(2) of the Companies Act, the Court may grant relief “if the Court considers that it is just and equitable to do so”.

[51]   The Court’s jurisdiction under s 43(3) of the CCLA, is broad enough to permit the Court to deal with the shares held by Mr Baker without recourse to the powers under the Companies Act. Section 43(3) provides the Court may make the following orders:

(3)An order under this section may—

(a)direct a party to pay to any other party the sum that the court thinks just (subject to section 35):

(b)direct a party to do or refrain from doing, in relation to any other party, any act or thing that the court thinks just:

(c)vest the whole or any part of any relevant property in a party:

(d)direct a party to transfer or assign the whole or any part of any relevant property to any other party:

(e)direct a party to deliver the whole or any part of the possession of any relevant property to any other party.

[52]   At [31] above, I set out the relief Mr Baker sought in his submissions. The starting point is to consider the effect of the cancellation on 8 March 2021:

42       Effect of cancellation

(1)When a contract is cancelled, the following provisions apply:

(a)to the extent that the contract remains unperformed at the time of the cancellation, no party is obliged or entitled to perform it further:

(b)to the extent that the contract has been performed at the time of the cancellation, no party is, by reason only of the cancellation, divested of any property transferred or money paid under the contract.

(2)This section is subject to the rest of this subpart.

(3)Nothing in this section affects the right of a party to recover damages for a misrepresentation or the repudiation or breach of the contract by another party.

[53]   In a sense, s 42 of the CCLA freezes the parties’ position as at the date of cancellation but as the breadth of s 43 of the Act suggests, the Court can take into account all circumstances including post cancellation matters in shaping relief.

Share repurchase

[54]   Mr Baker seeks USD 2,600,000 for his 26 per cent shareholding in LincSpun on  the  basis  Mr Libeau  had  previously  said  the  company  could  be  worth   USD 10,000,000. While this claim was made in Mr Baker’s submissions, it was not developed at all in oral submissions.

[55]   I dismiss this claim on the grounds there is no appropriate evidence, expert or otherwise, as to the value of the shares in LincSpun Tech. Mr Libeau’s opinion in May 2015 as to a possible future value of the company is of no assistance in attempting to determine the value of the shares in LincSpun Tech six years later at cancellation or as at the hearing, nearly eight years later.

Royalties and interest

[56]   For Mr Baker to receive both interest on the return of his funds and a share of the royalties would represent a double recovery. If the appropriate relief is to unravel

the transaction as if it had not occurred and return to Mr Baker his funds together with interest, then he is not entitled to royalties. In order to receive royalties Mr Baker would need to be a shareholder for the period for which a share of the royalties received by LincSpun Tech is sought with all the costs and risks associated with being a shareholder.

[57]   The fact Mr Baker did not include this claim in his pleadings is of itself fatal to his seeking to recover royalties. In any event, the 4 May 2015 contract did not confer on Mr Baker an automatic entitlement to a percentage of all royalties received by LincSpun to be paid to him by way of a dividend. Royalties received by LincSpun represent its gross income and cannot be equated with a profit available to be distributed to shareholders by way of dividend. Whether Mr Baker as a shareholder of LincSpun Tech would receive a dividend was dependent on a wide range of factors. When, how often, and in what sum a dividend might be paid by LincSpun Tech cannot be determined on the material before me.   When dividends will be paid, if at all, is   a matter of corporate governance which the Courts are unlikely to intrude on without good cause. LincSpun Tech was a new company formed with the intention of growing the value of its intellectual property. In those circumstances, no dividend may have been paid for some time while the company became established. Initial dividends may be modest while income is held within the company. While Mr Baker presented evidence of royalties received by LincSpun Tech, it does not follow that he had an entitlement to a share of that income.

[58]   I dismiss Mr Baker’s claim to a share of the  royalties  received  by  LincSpun Tech on the following grounds:

(a)that claim was not specifically pleaded;

(b)in any event, having cancelled the contract on 8 March 2021, Mr Baker cannot have had an expectation of receiving dividends after that date; and

(c)dividend policy is a matter for the board of the company. Mr Baker cannot point to an entitlement to a dividend that was breached through a failure by LincSpun Tech.

[59]   I also decline to set aside  the  Global  Licensing Agreement  as  sought  in Mr Baker’s submissions. There are further issues with that claim. LincSpun Tech is not a party to this proceeding. No orders can be made affecting that company and its agreements unless it was a party. In any event, with Mr Baker exiting his shareholding in that company the existence of the Global Licensing Agreement becomes irrelevant to him.

[60]   Mr Baker’s investment was a commercial one. There is no basis to make an award for emotional and mental stress. That is not to say the failure of a commercial venture does not create stress and anxiety but does not make them recoverable in a commercial context.

[61]   Finally, I do not intend to make any orders in respect of the publication of this judgment to the Companies Office. This judgment is a public judgment.

The unravelling of the purchase contract

[62]   In circumstances where no particulars have been pleaded, the only practical relief I can order is for the share purchase to be unravelled and for Mr Libeau to be ordered to acquire Mr Baker’s shares at their purchase price plus interest from the date of purchase. In my view, interest should run from the date of acquisition, not the date of cancellation as Mr Libeau did not follow the terms of the contract from the time the money was paid. Mr Baker has been out of his funds since he paid them without receiving any financial return and Mr Libeau or his entities has enjoyed the funds since then.

[63] This approach accords with the open proposal made by Mr Baker during the hearing referred to at [36] above which was essentially an acknowledgement of liability.

[64]   There is simply no other basis before the Court on which relief could be granted. The absence of pleadings as to quantum was commented on by the Court in its judgment of 31 October 2022 in relation to security for costs on the counterclaim and other matters.3 The Court commented at that stage the hearing date was approaching and the parties needed to finalise the quantum of their respective claims and plead other damages with appropriate detail and if the parties were going to instruct experts, they needed to agree a timetable for those experts to confer and complete an expert report. This was at a time when both parties were represented. Those steps were not taken. I acknowledge Mr Bakers says he was unable to secure expert evidence. That however does not advance his position.

[65]   While I have concluded Mr Libeau breached his agreement with Mr Baker in the way I have described, I conclude the only form of relief I can sensibly grant on the material before me is an order that Mr Libeau is to acquire Mr Baker’s shares in LincSpun Tech at a figure that represents the amount paid by Mr Baker.

[66]Accordingly, I make the following orders under s 43 of the CCLA:

(i)Mr Libeau is to pay to Mr  Baker  USD  160,000  converted  into  New Zealand currency as at the date of this judgment. Interest is to run at 5 per cent per annum as follows:

(a)on USD 50,000 from 11 May 2015;

(b)on USD 50,000 from 6 July 2015;

(c)on USD 50,000 from 13 August 2015; and

(d)on USD 10,000 from 12 July 2016.

Interest is to be calculated on a simple basis.

3      Baker v Libeau [2022] NZHC 2286.

[67]   I make this last order in respect of interest as interest has not been sought under the Interest on Money Claims Act 2016 under which interest is compounded. The order to pay interest is made pursuant to the CCLA to compensate Mr Baker for being out of his funds.

[68]   Upon Mr Libeau making the above payment,  Mr  Baker  is  to  transfer  to Mr Libeau or his nominee all shares that Mr Baker holds in LincSpun Tech Ltd and to resign as a director of that company. Mr Baker will be responsible for preparing the appropriate share transfers and resignation documents and file them with the Companies Office.

[69]   Pursuant to s 43 of the CCLA, interest will run at 5 per cent on the judgment sum until paid.

Costs

[70]   The statement of claim does not contain a prayer for relief for costs but again Mr Libeau offered to pay costs as part of his, in effect, concession made during both during and post the hearing.

[71]   Accordingly, there is an  order Mr Libeau  is  to  pay  to  Mr Baker  costs  on a 2B basis in respect of the proceeding together with disbursements as fixed by the Registrar. If costs cannot be agreed memoranda limited to five pages are to be filed by Mr Baker within 21 working days and Mr Libeau within 14 days thereafter.

...................................................

Eaton J

Copy to: R D Baker

J-M Libeau