Central Motor Group Limited v Elmiger

[2016] NZHC 1824

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV 2016-463-90 [2016] NZHC 1824

BETWEEN

CENTRAL MOTOR GROUP LIMITED

First Plaintiff

RICHARD HUGH BLAKENEY- WILLIAMS, KIM MARIE BLAKENEY- WILLIAMS AND HAMISH ROBERT GILLER as trustees of the BURMA TRUST

Secod Plaintiff

DIAMOND LASER MEDISPA TAUPO LIMITED

Third Plaintiff

AND

STEPHANIE ANN ELMIGER Defendant

Hearing:	8 August 2016
Counsel:	P J Morris for Plaintiffs L A Foley for Defendant
Judgment:	8 August 2016

(ORAL) JUDGMENT (NO. 2) OF HEATH J

p

Solicitors:
Stace Hammond, Hamilton

Le Pine & Co, Taupo

CENTRAL MOTOR GROUP LIMITED v ELMIGER [2016] NZHC 1824 [8 August 2016]

[1]      On Friday last, 4 August 2016, Central Motor Group Ltd, the trustees of the Burma Trust  and  Diamond  Laser Medispa Taupo  Ltd  each  applied  for  freezing orders in respect of Ms Stephanie Elmiger.  The circumstances in which the orders were sought are set out in my judgment of 4 August 2016.1   I do not repeat those for present purposes.

[2]      A limited order was made in favour of the plaintiffs.  I was satisfied that Ms Elmiger should be restrained from taking any steps to sell, encumber or otherwise dispose of her interest in a property situated at 27A Sunset Street, Taupo pending further order of the Court but was not persuaded that any further interim relief was required.  I did direct Ms Elmiger to file and serve an affidavit setting out her assets and liabilities before this morning’s hearing at 9am.

[3]      I have heard this morning from Mr Morris, for the plaintiffs, and Ms Foley, for Ms Elmiger.  An affidavit has been filed by Ms Elmiger.  It demonstrates that the equity in the Sunset Street property is not so great as the plaintiffs had initially anticipated.  In addition, there are significant other liabilities and little in the way of savings that the plaintiffs could attach, if successful in their proceedings.

[4]      Following discussions  between  counsel,  sensible arrangements  have been made to enable the property to be sold under conditions that will allow the net proceeds  of  sale  to  be  held  by solicitors  on  trust  pending  the  outcome  of  this proceeding.

[5]      In addition, Ms Elmiger shall provide bank statements to the plaintiffs for the use of Mr Parsons, the investigating accountant, so that any further concerns about misappropriation can be investigated.   That means that the existing non-party discovery application can be adjourned for consideration later, if necessary.   The terms on which those documents are to be supplied will be agreed between counsel.

I record that Ms Elmiger denies allegations of wrongdoing on her behalf.

1      Central Motor Group Ltd v Elmiger [2016] NZHC 1793.

[6]      In order to give effect to those arrangements, I discharge the injunction set out  at  para  [16](a)  of  my judgment  of  4 August  2016  and  replace  it  with  the following:

(a)      Ms Elmiger shall be permitted to continue to sell the property at 27A Sunset  Street,  Taupo,   the  legal  description  of  which  is  more particularly set out in para [16](a) of my judgment of 4 August 2016, to a bona fide purchaser for value to be determined after consultation with the plaintiffs or, in the absence of agreement from the plaintiffs, by the Court.

(b)Any proceeds of sale (net of real estate agent’s commission, legal expenses occasioned by the sale and payment of the Bank of New Zealand’s mortgage) shall remain the subject of a freezing order on the basis that the funds be held on interest bearing deposit by the solicitors acting for Ms Elmiger on the sale, Le Pine & Co, solicitors, Taupo.

[7]      Those solicitors shall advise the Court and the plaintiff’s counsel in the event that instructions are withdrawn from them at any stage in respect of the sale of the property.   If that were to occur, leave to apply to reinstate the previous order is reserved.  Such application may be made to the Court at short notice.

[8]      So far as moneys held in a savings account with the Bank of New Zealand are concerned, arrangements have been made for Ms Elmiger to pay an undisputed balance of $4,000 to the plaintiffs.  That sum shall be paid within 24 hours, with the balance  of that  account  then being  used  for the purpose  of  living  expenses by Ms Elmiger.   No order is made in respect of the Kiwisaver balance disclosed in Ms Elmiger’s affidavit of 5 August 2016.

[9]      On the basis of those orders, I direct that a statement of defence be filed and served on or before 30 September 2016.   The Registrar shall allocate a case management conference before an Associate Judge on the first available date thereafter.  The non-party discovery application is adjourned to be called before the

Associate Judge at the case management conference, with leave for that application to be brought back before the Court for earlier consideration if necessary.

[10]     Mr Parsons will continue his investigation and file an affidavit as soon as practicable outlining the conclusions he has reached.  That affidavit should be filed and served well in advance of the case management conference so that Ms Foley is able to advise Ms Elmiger on its content.

[11]   Generally, leave to apply is reserved in the event of any unexpected developments.

[12]     All questions of costs are reserved.

P R Heath J