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FFP Trustee (NZ) Ltd v Peng

FFP Trustee (NZ) Ltd v Peng

Case [2019] NZHC 3301 16 December 2019

Trust Administration

International Asset Forfeiture

Benjamin Order

Trust Law

International Law

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002631

[2019] NZHC 3301

BETWEEN
FFP TRUSTEE (NZ) LIMITED

First Applicant

FFP (CAYMAN) LIMITED
Second Applicant

AND

LOW HOCK PENG

First Respondent

GOH GAIK EWE
Second Respondent

LOW MAY LIN

Third Respondent

LOW TAEK SZEN
Fourth Respondent

LOW TAEK JHO

First Respondent

Hearing: 9 December 2019

Appearances:

N Williams, S O’Connor and B Finn for Applicants No appearance for or by Respondents

Judgment:

16 December 2019

INTERIM JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 16 December 2019 at 2.00 pm, pursuant to r 11.5 of the High Court Rules

Date:

Solicitors/counsel:
Meredith Connell, Auckland

FFP TRUSTEE (NZ) LTD v PENG [2019] NZHC 3301 [16 December 2019]

Introduction

[1] The first applicant – FFP Trustee (NZ) Limited – is a New Zealand registered company. It is described as an “affiliate” of the second applicant – FFP (Cayman) Limited. FFP (Cayman) Limited is an offshore professional services firm, providing fiduciary, restructuring, trustee, registered office and agent services. It is based in both the Cayman Islands and in the British Virgin Islands.

[2] Either the first or the second applicant is the trustee of one or more discretionary trusts subject to New Zealand law and they are jointly referred to in this judgment as FFP. The names of the various trusts are listed in Schedule 1 to this judgment (the Schedule 1 trusts).

[3] The respondents (either all or some of them) are said to be the ultimate beneficiaries of each of the Schedule 1 trusts.

[4] FFP have filed an originating application under Part 19 of the High Court Rules 2016. The application is filed without notice. They seek the following:

(a)leave to commence the proceedings by way of originating application;

(b)confidentiality orders;

(c)directions under s 66 of the Trustee Act 1956 in relation to their proposed actions in dealing with the assets of each of the Schedule 1 trusts;

(d)a “Benjamin” order1 (or an order to materially the same effect); and

(e)reimbursement and indemnification from trust funds (as defined in the trust deeds for each Schedule 1 trust) for their costs of and incidental to the application.

1 Named after the decision in Re Benjamin [1902] 1 Ch 723.

Background

[5] In July 2016 and June 2017, a number of related civil asset forfeiture proceedings were commenced in the United States (US) District Court for the Central District of California. They alleged that there had been an international conspiracy to launder money said to have been misappropriated from an entity known as 1Malaysia Development Berhad, a strategic development company wholly owned by the Malaysian Government. The assets it was sought to forfeit were said to be traceable to the alleged misappropriation and international conspiracy.2

[6] Ten of the civil forfeiture actions related to assets owned by the Schedule 1 trusts.3 The affected trust, the relevant US forfeiture proceedings and the assets belonging to each trust and…

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 FFP Trustee (NZ) Ltd v Peng

Details

AGLC: FFP Trustee (NZ) Ltd v Peng [2019] NZHC 3301
Case: [2019] NZHC 3301
Decision Date: 16 December 2019

CaseChat Overview and Summary

The case of FFP Trustee (NZ) Ltd v Peng involved an application by FFP Trustee (NZ) Limited and FFP (Cayman) Limited, trustees of several discretionary trusts, to the New Zealand High Court. The applicants sought various orders, including leave to commence proceedings by way of originating application without notice, confidentiality orders, directions under the Trustee Act 1956, a Benjamin order, and reimbursement and indemnification for their costs. The respondents, alleged to be the ultimate beneficiaries of the trusts, did not appear or oppose the application.

The legal issues centered on the appropriateness of the applicants proceeding without notice, the granting of confidentiality orders, the provision of directions under the Trustee Act and the Court's inherent jurisdiction, the issuance of a Benjamin order, and the reimbursement of costs from the trust funds. The court found that the applicants could proceed without notice as there were no disputed factual issues, and particularised pleadings and interlocutory steps were unnecessary. Confidentiality orders were granted in part, sealing certain privileged and confidential documents, but the court declined to anonymise the names of the trusts and beneficiaries or to make orders that would waive privilege or confidentiality in any other jurisdiction. Directions under the Trustee Act were granted for the applicants to forfeit certain assets to the US Government, except in two specific proceedings where further direction was reserved pending service on a claimant. A Benjamin order was declined due to the existence of known claimants and potential unknown claimants, and the lack of detailed information about the alleged misappropriations. Costs reimbursement was limited to the Global One Real Estate Trust, excluding the assets to be forfeited.

The court issued an interim judgment, allowing the application to proceed and inviting the applicants to advise on further steps by a specified date. The judgment emphasized the need for further information and consideration regarding certain aspects of the application.

Orders