Business Control (Schweiz) AG v Shibalova - [2025] NZHC 1120

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2021-488-0001

[2025] NZHC 1120

BETWEEN
BUSINESS CONTROL (SCHWEIZ) AG

Plaintiff

AND

INNA SHIBALOVA

Defendant

Hearing: 07 October 2024 to 15 October 2024

Appearances:

S Wroe and T Ashley for Plaintiff Defendant in person

Judgment:

9 May 2025

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 9 May 2025 at 3.30 pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Solicitors/Counsel:
S Wroe, Auckland
Sanford & Partners, Rotorua Copy to Defendant

BUSINESS CONTROL (SCHWEIZ) AG v SHIBALOVA [2025] NZHC 1120 [9 May 2025]

Introduction [1]

Background[14]

Pleadings[76]

Issues[123]

Breach of contract[123](1)

Assignment [123](4)

Private Security Act [123](6)
Limitations of Actions Act [123](7)

Quantification of loss[123](9)

Alternative cause of action – quantum meruit[123](11) Quantification of loss [123](15)
Limitation of Actions Act [123](17)

Choice of law[124]

The law in Victoria [129]

Assignment of a chose in action[131]

Contractual interpretation[154]

Contracts for personal services[157]

The PSA[163]

Statutory interpretation[177]

Limitation of Actions[182]

Discussion[185]

Was there an Oral Term in the MPOL Contract to the effect that Ms Shibalova would be liable for payment of the 35 per cent fee only if it was able to be
deducted from the collected amount before it was paid to a family member or bank account?[185]
What is the correct interpretation of the phrase in the contract “collected on your behalf”?[194]

Were monies “collected” on Ms Shibalova’s behalf?[225]

Did Ms Shibalova breach her contract with MPOL?[230]

Did MPOL express an intention to assign its interest in recovery of the 35 per cent fee to BCS?[235]
When was the Assignment Agreement entered into?[245]

Did Mr Grover have authority to bind MPOL when he made the purported assignment?[254]
Was the subject matter of the assignment ascertainable and identifiable when it came into existence?[256]
Did BCS provide consideration for the assignment?[259]

Is the MPOL contract a contract for personal services that could not be assigned?

[260]

Does s 127 of the PSA apply so as to prevent recovery of the fee?[267]

Does Ms Shibalova have a defence under s 5 of the Limitation of Actions Act?

[274]

What is BCS’s loss?[287]

What interest is payable?[290]

Alternative cause of action – quantum meruit[300]

Result[301]

Costs[303]

Introduction

[1] In 2006, Inna Shibalova took USD 10 million from a Hong Kong bank account which she operated with her father, who was a Russian lawyer and businessman. The money was not hers. It is described as the proceeds of a port company sale in Russia.

[2] From those funds, Ms Shibalova transferred USD 9.6 million to an account operated by her married boyfriend, Andrey Ivanov. She believed that he would invest the money on her behalf and leave his wife so that they could be together. Instead, Mr Ivanov stole the money and disappeared.

[3] Ms Shibalova was living in Melbourne. In July 2007, she realised that she had been deceived and engaged the services of a Melbourne-based private investigation firm, MPOL…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NZHC 1120
Decision Date: 9 May 2025

CaseChat Overview and Summary

In the case of Business Control (Schweiz) AG v Shibalova, the plaintiff, Business Control (Schweiz) AG (BCS), sued the defendant, Inna Shibalova, for breach of contract and an alternative cause of action in quantum meruit. BCS claimed that it was entitled to a commission of 35 per cent of the USD 9.6 million recovered from Andrey Ivanov, which was stolen by Ivanov from Ms Shibalova. The defendant argued that she was not liable for the commission fee and raised various defences, including that the contract was a contract for personal services incapable of assignment. The court found in favour of BCS and against Ms Shibalova for EUR 2,678,215, plus interest. The court held that there was an oral term in the contract that Ms Shibalova would be liable for the commission fee only if it was able to be deducted from the collected amount before it was paid to a family member or bank account. The court also found that the contract was not a contract for personal services and could be assigned. The court further held that the assignment was valid and enforceable, and that Ms Shibalova was liable for the commission fee. The court awarded interest on the judgment sum from 22 April 2015 until payment, at the rate calculated in accordance with the Interest on Money Claims Act 2016. The court directed the parties to attempt to agree costs and made directions for any application for costs.

Orders