FFP Trustee (NZ) v Peng - [2020] NZHC 927

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-002631

[2020] NZHC 927

BETWEEN
FFP TRUSTEE (NZ) LTD

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

Fifth Respondent

Hearing: 6 May 2020

Appearances:

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

B Hennigan for VHG Beverly Hills LLC

Judgment:

6 May 2020

FINAL JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie On 6 May 2020 at 5.00 pm
Pursuant to r 11.5 of the High Court Rules Registrar/Deputy Registrar

Date:…………………………

FFP TRUSTEE (NZ) LTD v PENG [2020] NZHC 927 [6 May 2020]

[1] I refer to my interim judgment dated 16 December 2019.1 I made various orders and gave a direction under s 66 of the Trustee Act 1956. I declined to give a direction in respect of the proceedings identified as numbers 9 and 10 in Schedule 2 to my interim judgment, because a claimant who was not a party to the Stipulation and Request that led to the consent judgments for forfeiture had not been served.

[2] The claimant was an entity known as VHG Beverly Hills LLC (VHG). It was affected by the orders sought by FFP in relation to the real property and business assets respectively the subject of proceedings United States of America v The Real Property Known as The Viceroy L’Ermitage Beverly Hills2 and United States of America v All Business Assets of the Viceroy L’Ermitage Beverly Hills, Including all Chattels and Intangible Assets, Inventory, Equipment and All Leases, Rents and Profits Derived Therefrom3 (jointly the L’Ermitage proceedings). I required that VHG be served.

[3] VHG has since been served with all relevant papers, through its US attorney, Mr Brian Hennigan. Mr Hennigan appeared before me and I was grateful for his attendance.

[4]Mr Williams, appearing for the applicants, advised that:

(a)the JW Trust4 ultimately owns a 50 per cent interest in five companies that together operate the Viceroy Hotel Group. The other 50 per cent of the Group is indirectly owned by Mubadala,5 through various holding and intermediate companies and nominees;

(b)VHG is wholly owned by VHG Hotel Management LLC, one of the five companies that make up the Viceroy Hotel Group;

(c)VHG Hotel Management LLC is ultimately owned by Mubadala and the JW Trust;

1      FFP Trustee (NZ) Ltd v Peng [2019] NZHC 3301.
2      United States of America v The Real Property Known as The Viceroy L’Ermitage Beverly Hills
CIV 16-5368 DSF (PLAx).
3      United States of America v All Business Assets of the Viceroy L’Ermitage Beverly Hills, Including all Chattels and Intangible Assets, Inventory, Equipment and All Leases, Rents and Profits Derived Therefrom CIV 16-5369 DSF (PLAx).
4      See interim judgment.
5      See interim judgment.

(d)FFP is not a director of VHG and FFP does not control…

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) v Peng

Details

AGLC: FFP Trustee (NZ) v Peng [2020] NZHC 927
Case: [2020] NZHC 927
Decision Date: 6 May 2020

CaseChat Overview and Summary

The High Court of New Zealand considered the case of FFP Trustee (NZ) Ltd and FFP (Cayman) Limited against Low Hock Peng, Goh Gaik Ewe, Low May Lin, Low Taek Szen, and Low Taek Jho. The applicants sought to have the court declare that certain assets were subject to a direction under section 66 of the Trustee Act 1956, effectively forfeiting them due to their connection to criminal activities. The case arose from the forfeiture of assets in the United States, and the applicants sought to extend this forfeiture to assets in New Zealand.

The legal issues before the court included whether the court had jurisdiction to make a direction under section 66 of the Trustee Act concerning the specified assets and whether there were any objections to the applicants' claims. A critical aspect of the case was the involvement of VHG Beverly Hills LLC, which had an interest in the assets and was not initially served with the relevant papers. The court had to determine whether the absence of VHG in the initial proceedings affected the validity of the orders sought by the applicants.

Justice Wylie found that VHG had been properly served and had indicated it did not oppose the applicants' claims. Given that VHG had withdrawn its claims in related proceedings in the United States and had agreed to the sale of the assets, the court concluded there was no objection to making the same direction under the Trustee Act. Wylie J approved the draft directions submitted by counsel for the applicants and ordered accordingly.

The final orders of the court aligned with the draft directions submitted by the applicants' counsel, directing that the specified assets be forfeited in accordance with the applicants' claims and the provisions of the Trustee Act. The court's decision effectively extended the forfeiture of the assets from the United States to New Zealand, ensuring that the respondents could not claim any interest in the specified assets.

Orders