Jones v Goertzen - [2020] NZHC 176

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000203

[2020] NZHC 176

IN THE MATTER
of the receivership of CORE INFRASTRUCTURE LIMITED

(In Receivership)

BETWEEN

KIERAN MICHAEL JONES and THOMAS

LEE RODEWALD as receivers of CORE INFRASTRUCTURE LIMITED (In

Receivership) Plaintiffs

AND

UNKNOWN DEFENDANTS being the Account Holders of those accounts held with the Bank of New Zealand referred to in paragraph 4 of the Statement of Claim

First Defendants

JASON GOERTZEN

Second Defendant

Hearing: On the papers

Counsel:

R B Hucker/ N A Muir for the Plaintiffs No appearance on behalf of the Defendants

Judgment:

14 February 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 14 February 2020 at 3:45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Hucker Associates, Auckland

[1] The plaintiffs apply without notice for a freezing order over funds held in two nominated bank accounts in the name of unknown defendants into which payments due to Core Infrastructure Limited (In receivership) (the company) for work undertaken in connection with the Transmission Gully motorway project in Wellington have been paid.

[2] The application is supported by an affidavit of one of the two receivers of the company, Kieran Michael Jones, and an undertaking as to damages, signed by the second receiver, Thomas Lee Rodewald.

Factual background

[3] The plaintiffs were appointed receivers of the company on 20 January 2020. The first defendants are the unknown defendants. The second defendant was at all material times the sole director and shareholder of the company. The company had a contract with the joint venture building the Transmission Gully motorway in Wellington to supply it with quarry rock for incorporation in the motorway.

[4] Upon their appointment, the plaintiffs obtained copies of invoices that had been raised by the company for the quarry rock supplied to the Transmission Gully motorway project that specified an account number into which payments for the quarry rock had been made. The account into which the payments had been made and which was the account into which payments were directed to be made on the face of the invoices is not an account of the company. Some funds appear to have subsequently been transferred to another account again not in the name of the company.

[5] The plaintiffs requested details of the accounts into which payments have been made, but the Bank of New Zealand has declined to provide any details of the account holders without their consent, which the bank has been unable to obtain. The plaintiffs’ enquiries made of the company’s accountant and the second defendant’s former wife disclose that the accounts may be held in the name of the second defendant’s step-daughters or the second defendant personally.

[6] The plaintiffs acknowledge that not all of the funds paid into the accounts would be recoverable by them to the extent that payments have been made to bona

fide company creditors from those funds.…

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 Jones v Goertzen

Details

AGLC: Jones v Goertzen [2020] NZHC 176
Case: [2020] NZHC 176
Decision Date: 14 February 2020

CaseChat Overview and Summary

The High Court of New Zealand was asked to consider an application for a freezing order over funds held in two bank accounts in the name of unknown defendants. The applicants, Kieran Michael Jones and Thomas Lee Rodewald, were appointed receivers of Core Infrastructure Limited (In Receivership) and sought the order to prevent the dissipation of funds paid into the accounts for work done on the Transmission Gully motorway project in Wellington. The second defendant, Jason Goertzen, was the sole director and shareholder of the company. The court had to decide whether to grant the freezing order without notice to the defendants, and if so, what the appropriate terms of the order should be. The court found that the applicants had established a good arguable case that the funds in question belonged to the company, and that there was a real risk of dissipation of those funds given the second defendant's refusal to cooperate and threats to leave the country. The court therefore made a freezing order over the two specified bank accounts and restrained the defendants from removing, disposing of, or dealing with the assets. The freezing order was to be called in the Duty Judge list for continuation or renewal on 27 February 2020, and the defendants were given leave to apply to discharge or vary the order on three working days’ notice.

Orders