Dhieux v Mancel
[2025] NZHC 1639
•18 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-1323
[2025] NZHC 1639
BETWEEN FRANÇOISE CLOTILDE DHIEUX
Applicant
AND
EMERIC XAVIER MANCEL and MING MANCEL
Respondents
Hearing: On the papers Counsel:
A W Johnson and K R Narayan for applicant
Date of judgment:
18 June 2025
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 18 June 2025 at 3.45pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors:
Martelli McKegg, Auckland
DHIEUX v MANCEL [2025] NZHC 1639 [18 June 2025]
[1] As duty judge, I have Françoise Dhieux’s 17 June 2025 without notice originating application for a freezing order in respect of New Zealand property (real estate, bank accounts and shares) in the names of either or both her brother and his wife, respectively Emeric and Ming Mancel.
Background
[2] Ms Dhieux’s and Mr Mancel’s mother, Jacqueline Mancel, died on 25 May 2022. I offer the Court’s condolence to her survivors.
[3] Ms Dhieux is resident in New Caledonia, as was the mother; Mr Mancel and his immediate family are resident in the Republic of Ireland. The mother inherited a substantial estate from her husband (the children’s father) on his death in 2001.
[4] In New Caledonian proceedings, Ms Dhieux alleges her brother acquired the New Zealand property using funds transferred to the Mancels from the mother’s account since 1994. She says those transfers substantially depleted the mother’s assets and left little in her estate on her death, meaning her inheritance entitlement is unmet.
Law on freezing orders
[5] Freezing orders may be ordered if I am satisfied, having regard to all the circumstances, there is a danger a prospective judgment in Ms Dhieux’s favour will be wholly or partly unsatisfied because the value of the Mancels’ assets is alienated from them in some manner.1
[6] Freezing orders are “a valuable protective measure for those commencing civil proceedings”,2 for which Ms Dhieux must show “a good arguable case on an accrued or prospective cause of action”.3 By ‘good arguable case’ is meant establishment of “a sufficiently plausible foundation” such that “the cause of action is at least tenable”:4
1 High Court Rules 2016, r 32.5(4).
2 Hannay v Mount [2011] NZCA 530 at [20], referring to Deutsche Schachtbau-und Tiefbohrgesellschaft MBH v Shell International Petroleum Co Ltd (trading as Shell International Trading Co) [1990] 1 AC 295 (HL) at 317.
3 High Court Rules, r 32.5(1)(b).
4 Hannay v Mount, above n 2, at [21], citing Wing Hung Printing Co Ltd v Saito Offshore Pty Ltd [2011] 1 NZLR 754 (CA) at [41] and referring to Kuwait Asia Bank EC v National Mutual Life Nominees Ltd (No 2) [1989] 2 NZLR 50 (CA) at 55, and [22].
A good arguable case against the respondent is therefore established if 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.
It does not matter if the cause of action is in “another court”,5 meaning “a court outside New Zealand or a court in New Zealand other than the High Court”.6
[7] As to the danger of alienation, I must be satisfied assets may be removed or dealt with in a way that may frustrate the prospective judgment; that there are “circumstances from which a ‘prudent, sensible commercial man, can properly infer a danger of default’” on adverse judgment.7
[8] I then must consider where lies the balance of convenience,8 meaning if it bears harder on Ms Dhieux to be without prospective recourse to the Mancels’ assets, or on the Mancels to have their assets frozen, pending judgment in their respective favours.9
[9] The form of any freezing order must not prohibit dealings with the assets to pay ordinary living expenses and legal expenses relating to the freezing order or in the ordinary course of business,10 and where made without notice be limited to a particular date as early as practicable after the freezing order is made,11 and with leave reserved to discharge or vary the freezing order urgently on notice.12
Discussion
[10] Being satisfied r 32.2(1) of the High Court Rules 2016 expressly permits the application to be made without serving notice of the application, I determine Ms Dhieux’s application can properly be dealt with without notice.13
5 High Court Rules, r 32.5(1)(b)(ii).
6 Rule 32.1 (definition of “another court”).
7 Murren v Schaeffer [2018] NZCA 318, (2018) 24 PRNZ 285 at [16], citing Raukura Moana Fisheries Ltd v The Ship “Irina Zharkikh” [2001] 2 NZLR 801 (HC) (citing Third Chandris Shipping Corporation v Unimarine SA [1979] QB 645 at 671).
8 At [17].
9 By analogy with Wellington International Airport Ltd v Air New Zealand Ltd HC Wellington CIV- 2007-485-1756, 30 July 2008 at [4] citing Cayne v Global Natural Resources Plc [1984] 1 All ER 225 (CA) at 237.
10 High Court Rules, r 32.6
11 Rule 32.7.
12 Rule 32.8.
13 Rule 7.46(3).
[11] I also am satisfied by Ms Dhieux’s affidavit evidence affirmed 13 June 2025, and those of Stéphanie Laubreaux and Phillippe O’Connor affirmed respectively 16 and 17 June 2025 as to New Caledonian law, her allegations against the Mancels are capable of tenable argument.
[12] The Civil Code of New Caledonia addresses inheritance entitlements, generally requiring reservation of a portion of a deceased’s estate for equal distribution between descendants, including to address any inter vivos receipts in quantum exceeding such entitlement.
[13] The evidence appears to establish the Mancels are in possession of property in New Zealand subject to an accounting in the New Caledonian proceeding. Such accounting is necessitated by allegations of Mr Mancel’s dishonesty, sufficiently to enable me to infer the requisite danger. Any possible defences the Mancels may have—essentially being to establish the accounting would be at zero because the transfers had been repaid or were not gifts or loans—are not obvious. I am in no doubt, particularly given subsequent freezing order procedures as I have explained them,14 the balance of convenience much favours Ms Dhieux.
[14] Ms Dhieux has given the required undertaking.15 She was obliged also fully and frankly to disclose any information casting doubt on her ability to discharge the undertaking’s obligation.16 Her affidavit is silent on the point, except to say she is a nurse. Again, given subsequent freezing order procedures as I have explained them, at least at this point any damage sustained in consequence of the freezing order likely is modest and the obligation accordingly not weighty. It may be the adequacy of the undertaking requires further attention as the procedure advances.
Result
[15] I therefore order in terms of the High Court Rules’ Form G 38, in respect of the assets identified at subparas 1.1, 1.2 and a second 1.2 of Ms Dhieux’s 17 June 2025 without notice originating application:
14 At [9] above.
15 High Court Rules, r 32.2(5).
16 Rule 32.2(3)(b).
(a)the freezing order to have no effect after its call in the duty judge’s list
at 10.00 am on Thursday, 26 June 2025; and
(b)any interlocutory application to discharge or vary the order to be made on two working days’ notice to Ms Dhieux.
—Jagose J
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