Bidesi v Bidesi

[2020] NZHC 255

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-301

[2020] NZHC 255

BETWEEN

ANTHONY UDESH CHANDRA BIDESI

Applicant

AND

ATISH CHANDRA BIDESI

Respondent

Hearing:	On the papers
Judgment:	25 February 2020

JUDGMENT OF GORDON J

This judgment was delivered by me

on 25 February 2020 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           Anthony Harper, Auckland

BIDESI v BIDESI [2020] NZHC 255 [25 February 2020]

[1]    The applicant, Anthony Bidesi, applies by way of originating application without notice for freezing orders and ancillary orders. Given the common surname, I will refer the applicant and respondent by their Christian names.

[2]    In short, Anthony seeks a freezing order to prevent the respondent, Atish Bidesi, from disposing of, dealing with or diminishing the value of certain bank accounts held in New Zealand. The ancillary orders sought are orders for discovery, the appointment of a receiver and costs.

Background

[3]    Anthony and Atish are brothers. Their uncle, Surya Bidesi (Surya), died in November 2013. Surya was the sole director and shareholder of a company in Fiji, Bidesi & Sons Ltd, which he operated as a sole trader. Surya and Bidesi & Sons owned a number of properties in Fiji and had significant sums of money in bank accounts in both Fiji and New Zealand. As Anthony understands it, at the time of Surya’s death, Surya and Bidesi & Sons owned assets worth approximately FJD$55 million (approximately NZ$39 million).

[4]    Surya had made a Will dated 29 August 2012 (the Will). Under the Will, Atish was the sole executor. He was bequeathed all of the shares in Bidesi & Sons on the condition that he made certain distributions from the assets of Bidesi & Sons.

[5]    Anthony was a beneficiary under Surya’s Will. He was to receive NZ$500,000 out of Surya’s New Zealand bank account; two properties in Fiji; 30 per cent of the net proceeds from the sale of two other properties in Fiji and 30 per cent of the residual monies in Surya’s New Zealand bank accounts, within five years of the date of Surya’s death, being 24 November 2018.

[6]    Of those assets that Anthony is entitled to under the Will, he has received only the $500,000 payment referred to above and none of the other assets. Anthony has contacted Atish and requested that Atish carry out the Will and provide an account of the estate.

[7]    Anthony says that he has been provided with some of the bank statements for the bank accounts between 11 November 2013 and October 2019. Some of the bank statements are missing and he does not have any after October 2019. Anthony says that since the time of Surya’s death Atish has removed a significant amount of funds from the New Zealand bank accounts (that Anthony is aware of) in excess of those that he was directed to remove under the Will.

[8]    Anthony is concerned, in light of Atish’s breaches of the Will to date, in particular in relation to the removal of funds from the bank accounts, and also discussions he has had with Atish, that Atish will not honour the Will. And further that Atish will continue to remove assets from the bank accounts. That means there is a risk that if Anthony continues with his attempts to enforce the Will, there will be no funds left in the bank accounts to pay him the specified percentage of what should have been in the bank accounts five years from the date of Surya’s death.

Should I make a freezing order

[9]    To make a freezing order, I must be satisfied the applicant has a good arguable case for substantive relief, there are assets to which the order can apply and there is a real risk of their dissipation.1 I must weigh the overall interests of justice. A good arguable case requires that “the allegations in the proposed claim are capable of tenable argument and are supported by sufficient evidence, bearing in mind the early stage at which the application is likely to be brought”.2

Is there a good arguable case?

[10]   The allegations (in the proposed substantive proceedings) are supported by evidence in Anthony’s affidavit that Atish is not carrying out his obligations as executor of Surya’s estate. There is supporting evidence in the form of bank statements showing withdrawals from the estate’s account that were not authorised by the Will. Further, the deadline for certain distributions to be made has passed and these distributions have not been made.

1      Shaw v Narain [1992] 2 NZLR 544 (CA) at 548; High Court Rules 2016, rr 32.5(1), 32.5(4).

2      Hannay v Mount [2011] NZCA 530 at [22].

[11]   I am satisfied that the applicant has a good arguable case in the pending substantive proceeding.

Are there assets to which the orders may apply?

[12]   Atish, in his capacity as executor of the estate, is in control of estate funds in bank accounts and also may be in control of further funds located in New Zealand that are part of the estate.

[13]   I am satisfied that Atish is in possession or control of assets to which the orders may apply.

Is there a risk of dissipation?

[14]   I am satisfied on the evidence before me, that there is a danger that any prospective orders will not be satisfied because the assets in the bank accounts might be removed from New Zealand, or dissipated, disposed of, or transferred.

[15]   The evidence of Anthony, which I have summarised above, demonstrates that Atish has removed funds from the bank account to date. I accept it can be inferred that there is therefore a danger that Atish will remove further funds from the bank accounts. The result of this is that the amount of funds readily available to pay Anthony what he is entitled to under the Will will be further reduced.

Is it just and equitable for the orders to be made?

[16]   This requirement is made out. I have found there is a real risk that the assets will be removed. As a consequence it is likely that any judgment will not be satisfied. That then creates prejudice and hardship for Anthony.

[17]   On the other hand, if the orders are made, they will not create prejudice or create any hardship for Atish as he is not entitled to use or keep the funds that were bequeathed to Anthony.

[18]   It further appears that the orders will not create hardship or any prejudice for any other third party. As far as Anthony is aware, all other beneficiaries have received

what was bequeathed to them under the Will. If Anthony’s understanding is incorrect on this issue, then in fact the granting of the orders will in fact assist any other beneficiaries in preserving what was bequeathed to them.

[19]   In terms of the value of the assets that will be frozen, as far as Anthony is aware the value is less than the amount he claims. Accordingly, a maximum amount does not need to be prescribed.

[20]Finally, I note that Anthony has filed an understanding as to damages.

Jurisdiction for freezing order

[21]   Under r 32.5(3), the Court can issue a freezing order and/or an ancillary order relating to a matter where the substantive proceeding is taking place in another jurisdiction, where:

(a)There is sufficient prospect that the other court will give judgment in favour of the applicant; and

(b)There is a sufficient prospect that the judgment will be registered in or enforced by the court; and

(c)There is a real connecting link between the subject matter of the order sought and the territorial jurisdiction of the New Zealand court; and

(i)This is satisfied where the assets sought to be frozen are in New Zealand.3

(d)The order sought would not be inconsistent with interim relief granted by the other court.

[22]   I accept there is a sufficient prospect that the High Court of Fiji will give judgment in favour of Anthony for all of the reasons above. There is further a sufficient prospect that a judgment of the High Court of Fiji will be registered and

3      Yos v Heng HC Wellington CIV-2009-485-2346, 1 December 2009 at [10].

enforced by this Court. Anthony says that he intends on registering/enforcing the judgment of the High Court of Fiji with this Court.

[23]   There is also a link between the subject matter of the orders sought and the jurisdiction of the New Zealand Court. As is apparent, some of the assets subject to the pending litigation in the High Court of Fiji sought to be frozen are located in New Zealand.

Ancillary orders

[24]   The Court may make an order ancillary to a freezing order if the Court considers it just.4 I accept that the ancillary orders sought would fall within this rule.

[25]   I also accept that the orders for discovery and the appointment of a receiver are needed in order to elicit information relating to the assets to be frozen so that all relevant assets can be located and frozen.

[26]   Anthony has said that Atish has not provided him with an account of the estate’s assets or the estate’s bank statements. He therefore does not know whether or not he has identified all bank accounts held by the estate in New Zealand or what has happened with all of the funds in New Zealand accounts.

[27]   As to the appointment of a receiver in relation to the bank accounts, Jeffrey Philip Meltzer has filed an affidavit confirming he is able to act. He also confirms that he is independent. I am satisfied he has the appropriate qualifications.

Without notice orders

[28]   The High Court can grant freezing orders on a without notice basis if, inter alia, the Judge is satisfied that requiring the applicant to proceed on notice would cause undue delay or prejudice to the applicant and the interests of justice require the application to be determined without serving the notices of application.5

4      High Court Rules 2016, r 32.2(1).

5      High Court Rules 2016, r 7.23; r.7.46.

[29]   I am satisfied, based on the evidence of Anthony, which is summarised above, that requiring him to proceed on notice would cause prejudice to him and the interests of justice require the application be determined without serving notice on Atish. I accept there is a significant risk that if Atish is made aware of the application before the orders are granted, the funds that Anthony seeks to freeze will be removed and/or disposed of, and/or diminished before the orders are obtained and served on him and the relevant banks.

Result

[30]   I make the freezing and ancillary orders including the orders for costs in terms of the draft orders filed with the application.

Gordon J