Eliahu v Eliahu - [2022] NZHC 2872

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2088

[2022] NZHC 2872

BETWEEN
YARON ELIAHU

First Plaintiff

LIA ELIZABETH ELIAHU, LEO DANIEL ELIAHU AND LILLY RON ELIAHU
Second Plaintiffs

AND

DANIEL ELIAHU

First Defendant

Continued over

Hearing: 3 October 2022

Appearances:

C R Andrews and M C Staines for First Plaintiff K F Gould for First Defendant

Judgment:

3 November 2022

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 3 November 2022 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors: McVeagh Fleming, Auckland
DMG Solicitors, Auckland

Counsel: G P Blanchard KC, Auckland
K F Gould, Auckland

ELIAHU v ELIAHU [2022] NZHC 2872 [3 November 2022]

AND
PITA BREAD LIMITED

Second Defendant

PITA HOLDINGS LIMITED
Third Defendant

DANIEL ELIAHU AND DMG TRUSTEES (ELIAHU) LIMITED AS TRUSTEES OF THE PITA PROPERTY TRUST

Fourth Defendants

[1] This judgment concerns an application by Mr Yaron Eliahu, the first plaintiff, seeking relief in respect of an order that Gault J made against the first defendant, Mr Daniel Eliahu, on 15 March 2022 (“Gault J’s order”).1 Given that the application involves only the first plaintiff and first defendant, I shall refer to them as plaintiff and defendant.

[2] By his application, the plaintiff seeks a declaration that the defendant has acted in contempt of Court by breaching Gault J’s order, and other relief consequential thereon. The application is made pursuant to s 16 of the Contempt of Court Act 2019 (“the Act”).

[3]Gault J’s order provides:2

Pending the on-notice hearing on 12 April 2022, an order restraining the first defendant from authorising or making any payments from the bank accounts of Pita Holdings Ltd or Pita Bread Ltd to himself or to any other person except for a monthly salary of $25,000 and his ordinary expenses (principally his life insurance payment, payment to his ex-wife and his credit card expenses).

[4] The plaintiff alleges that the defendant breached Gault J’s order by transferring funds from the accounts of Pita Bread Ltd (“PBL”) between 29 April and 3 May 2022, and that the payments did not fall within the exceptions permitted by the order. The funds so transferred totalled $610,000. Of this, $230,000 was repaid to PBL, and another payment of $150,000 was reversed, leaving an outstanding balance of
$230,000.

[5] The defendant opposes the application. He denies making the payments, and submits that they were made by third party “hackers” who gained remote access to his computer as part of a “scam”.

Background

[6] The defendant incorporated PBL and Pita Holdings Ltd (“PHL”) in 1989. At all material times since 2009, he and the plaintiff have been the companies’ directors.

1 Eliahu v Eliahu HC Auckland CIV-2021-404-2088, 15 March 2022 (Minute No 3).
2 Above n 1, at [4](a).

[7] PBL is a wholly owned subsidiary of PHL. The plaintiff and defendant hold 9,998 of the shares in PHL jointly, as trustees of…

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 Eliahu v Eliahu

Details

AGLC: Eliahu v Eliahu [2022] NZHC 2872
Case: [2022] NZHC 2872
Decision Date: 3 November 2022

CaseChat Overview and Summary

The case of Eliahu v Eliahu involves Yaron Eliahu, the first plaintiff, and Daniel Eliahu, the first defendant, in the High Court of New Zealand. The plaintiff sought relief for an alleged breach of an order made by Gault J on 15 March 2022, which restrained the defendant from making certain payments from the accounts of Pita Holdings Ltd and Pita Bread Ltd. The plaintiff alleged that the defendant breached this order by transferring $610,000 from Pita Bread Ltd between 29 April and 3 May 2022, which was not permitted under the order. The defendant denied the allegations, claiming that the transfers were made by hackers. The legal issues before the court were whether the order was still in effect during the period in dispute and if the defendant had indeed breached it. The court determined that the order had lapsed and was not binding on the defendant during the period in question, leading to the dismissal of the plaintiff's application.

Justice Peters examined the wording of Gault J's order, which stated "Pending the on-notice hearing on 12 April 2022," and concluded that it meant "Until the on-notice hearing." The court found that Brewer J did not extend Gault J's order at the hearing on 12 April 2022, and thus the order lapsed at or immediately after that hearing. Additionally, the court found that the order was not clear and unambiguous, and therefore not binding on the defendant. As a result, the plaintiff's application was dismissed, and the first plaintiff was ordered to pay the first defendant's costs on a 2B basis plus disbursements.

Orders