Cleaver v Bond - [2023] NZHC 3588

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2023-419-000343

[2023] NZHC 3588

IN THE MATTER OF a Constructive Trust and interim freezing and ancillary orders under Part 32 of the High Court Rules

BETWEEN

KEVIN RAYMOND CLEAVER

Plaintiff

AND

KRYSTALL ERIKA CLEAVER BOND

Defendant

ANZ BANK NEW ZEALAND LIMITED

Non-Party

Hearing: On the papers

Appearances:

J M Rushton for the Plaintiff

Judgment:

8 December 2023

JUDGMENT OF HARVEY J

[On without notice application for freezing orders]

This judgment was delivered by me on 8 December 2023 at 12.30 pm pursuant to r 11.5 of the High Court Rules.

Date: …………………..
(Deputy) Registrar

Counsel:
Jane M Rushton, Barrister, Hamilton

CLEAVER v BOND [2023] NZHC 3588 [8 December 2023]

Introduction

[1] Kevin Cleaver seeks a freezing order over the ANZ bank account of his daughter, Krystall Bond. He claims that she is holding on trust funds for Mr Cleaver that are derived from his late mother’s estate. Mr Cleaver further claims that Ms Bond:

(a)has failed or refused to answer his questions about the balance of the account;

(b)has failed or refused to provide bank statements from that account on request;

(c)has failed or refused to return the inheritance to him on request.

[2] Mr Cleaver also alleges that Ms Bond has made unauthorised transactions and has been disposing of his inheritance funds or diminishing its value to her material advantage. He seeks an order that Ms Bond account in full to him in respect of ANZ Account No: [redacted], including by providing copies of all bank statements in respect of that account.

[3] In addition, I infer from the application, that Mr Cleaver seeks orders for substituted service to Ms Bond’s email address and work address as he says her whereabouts are unknown to him. Finally, Mr Cleaver seeks costs, interest and any other relief that the Court deems just. Affidavits in support, affirmed and sworn by the plaintiff and Mark Jepson respectively, along with a statement of claim, were also filed on 7 December 2023.

Submissions

[4] Ms Rushton submitted, in summary, that all of the elements required to enable the issuing of urgent freezing orders are present, as confirmed by the evidence of Mr Cleaver and his former solicitor, Mr Jepson. Counsel contended that Mr Cleaver has a good arguable case in that Ms Bond holds the funds for him on trust, that she has an asset over which an order could apply and that there is a real risk of dissipation of those funds by her which counsel argued are held by Ms Bond on trust for her father.

[5] For all of these reasons, and relying on the evidence of the two witnesses, Ms Rushton argued that the freezing order should be made on a without notice basis against Ms Bond.

Legal principles

[6] Rule 32.2 of the High Court Rules 2016 enables the Court to make a freezing order restraining a respondent from removing any assets located…

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.

Continue reading Cleaver v Bond

Details

AGLC: Cleaver v Bond [2023] NZHC 3588
Case: [2023] NZHC 3588
Decision Date: 8 December 2023

CaseChat Overview and Summary

Cleaver v Bond was a case heard in the High Court of New Zealand, where Kevin Cleaver sought freezing orders against his daughter, Krystall Bond, regarding funds he believed were held in trust for him from his late mother's estate. Cleaver alleged that Bond had refused to provide information about the account balance, failed to return the inheritance, and made unauthorized transactions. The application was made on a without notice basis due to Bond's unknown whereabouts.

The legal issues before the court involved determining whether Cleaver had a good arguable case, if there were assets subject to the freezing order, and if there was a real risk of asset dissipation. The court considered the requirements for granting freezing orders under the High Court Rules, including the need for a tenable claim, identifiable assets, and a risk of dissipation, as well as the overall justice of the case.

In Cleaver v Bond, the court found that Cleaver had a good arguable case based on the evidence presented. The ANZ bank account identified by Cleaver was deemed an asset over which the freezing order could apply, although the exact balance was unknown. The court accepted that there was a real risk of dissipation due to Bond's failure to disclose her financial position. The court determined that the interests of justice supported granting the freezing orders without notice, as freezing the account would not unduly prejudice Bond, and it was necessary to prevent the dissipation of assets.

The final orders included granting Cleaver's application for freezing orders over Bond's ANZ account, directing Bond to provide bank statements to Cleaver's counsel and the court urgently, and allowing substituted service of the orders via email and work address. Costs were reserved for later determination.

Orders