Grant v Bhana - [2016] NZHC 2352

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2014-463-169 [2016] NZHC 2352

BETWEEN
DAMIEN GRANT AND STEVEN KHOV

AS LIQUIDATORS OF RANOLF COMPANY LTD (IN LIQUIDATION) Applicants

AND

STEPHEN BHANA First Respondent

JASU MATI BHANA Second Respondent

Hearing:
9 March and 22 April 2016

Applicants' submissions: 11 May 2016

Respondents' submissions: 23 June 2016 (not filed) Reply: 1 July 2016 (not required)

Appearances:

B J Norling and A Cherkashina for Applicants
First and Second Respondents in person

Judgment:

4 October 2016

JUDGMENT OF BREWER J

This judgment was delivered by me on 4 October 2016 at 3:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors: Waterstone Insolvency (Auckland) for Applicants
(Copy to Respondents in person)

GRANT AND KHOV AS LIQUIDATORS OF RANOLF COMPANY LTD (IN LIQUIDATION) v BHANA [2016] NZHC 2352 [4 October 2016]

Background

[1] Mr Bhana and Ms Bhana are brother and sister. They have for some time been pursued by Mr Grant and Mr Khov (as liquidators) for information as to the affairs of Ranolf Company Ltd and an associated trust, the Ranolf Trust.

[2] On 25 November 2014, Woolford J made orders against each of the Bhanas compelling them to produce documents and provide information. The Bhanas did not comply with Woolford J’s orders.

[3] On 16 July 2015, Mr Grant and Mr Khov (“the applicants”) applied on notice for orders that the Bhanas be held in contempt of Court, fined and imprisoned unless they comply with Woolford J’s orders. The application was called before me for hearing on 21 October 2015. There was no appearance by or on behalf of the Bhanas. I found the Bhanas to be in contempt of Court for deliberately disobeying
Woolford J’s orders.1

[4] I directed that a warrant for the arrest of the Bhanas be issued, but stipulated that it lie in Court for a period to enable the Bhanas to take palliative steps. I said I would set a date for a penalty hearing once the period for the arrest warrants to lie in Court had expired.

[5] On 2 November 2015 (one hour before the expiry of the said period), the

Bhanas filed a joint affidavit. I recorded the situation in my Minute of 2 November

2015 and made further directions:

[3] I now have a joint affidavit of the respondents filed in the Court at
1:55 pm today. There are two aspects to it which need addressing:

(1) The respondents say they were never advised of the
21 October 2015 Court hearing date. The applicants filed affidavits of Sharon Dingwall sworn on 14 October 2015
deposing to service on the respondents. As I noted,
however, the affidavits did not have as exhibits copies of the documents actually served. I relied on advice from one of the counsel appearing for the applicants, Ms Cherkashina, that she gave the Court service copies to the office administrator for service and so there was no reason to

1 Grant & Khov as liquidators of Ranolf Co…

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 Grant v Bhana

Details

AGLC: Grant v Bhana [2016] NZHC 2352
Case: [2016] NZHC 2352
Decision Date: 4 October 2016

CaseChat Overview and Summary

The applicants, Mr Grant and Mr Khov as liquidators of Ranolf Company Ltd, sought to enforce orders made by Woolford J against the Bhanas, Mr Bhana and Ms Bhana, compelling them to produce documents and provide information. The Bhanas failed to comply with the orders, leading the applicants to seek contempt orders against them. The court had to determine whether the Bhanas had notice of the 21 October 2015 hearing, if the finding of contempt for non-compliance with Woolford J’s order should stand, and if penalties should be fixed.

The court found that the Bhanas had notice of the 21 October 2015 hearing. The evidence demonstrated that the Bhanas were served with the notice of application and supporting affidavit by an experienced process server, Ms Dingwall. The Bhanas' denial of receipt was deemed not credible due to their history of non-compliance with court orders and their emotional investment in the litigation. The court held that the Bhanas either overlooked the hearing date or chose not to attend. The finding of contempt for non-compliance with Woolford J’s order was upheld as the Bhanas deliberately disobeyed the court orders. The court decided not to fix penalties immediately, directing the applicants to file submissions on penalties and scheduling a penalty hearing.

The court ordered that the Bhanas should be aware of the potential consequences of contempt, including fines or imprisonment, and advised them to instruct counsel to represent them. Submissions on penalties were to be filed by 14 October 2016, with a response allowed for the Bhanas by 25 October 2016. A penalty hearing was scheduled for 8:30 am during the weeks of 7 and 14 November 2016, lasting one hour.

Orders