Kidd v van Heeren - [2019] NZHC 1761

This judgment is subject to temporary publication restrictions imposed by the Court of Appeal in Kidd v van Heeren [2019] NZCA 275 at order H and [88].

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2014-404-0725

[2019] NZHC 1761

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN

Defendant

Hearing: 15-17 July 2019

Appearances:

S J Mills QC and B O’Callahan for the plaintiff

M D O’Brien QC, A J Wakeman and R H Anderson for the defendant

Judgment:

25 July 2019

JUDGMENT OF JAGOSE J

This judgment was delivered by me on 25 July 2019 at 12 noon.
Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
S J Mills, QC, Shortland Chambers Auckland B O’Callahan, Barrister, Auckland
M D O’Brien QC, Auckland Fee Langstone, Auckland
K 3 Legal Limited, Auckland

KIDD v VAN HEEREN [2019] NZHC 1761 [25 July 2019]

[1] For this claim to an accounting for his share of their partnership, the plaintiff, Mr Kidd, seeks the defendant, Mr van Heeren, provide specified information and documents – both directly, and by exercising his powers to obtain information from two Liechtenstein-registered entities associated with him, the Gerda and Timbavati Foundations.

[2] Mr Kidd’s application principally relies on orders made by Fogarty J on 14 April 2015, declaring Mr van Heeren to be “issue estopped from denying the partnership and the accumulated worldwide assets of the partnership”,1 ordering an account to be taken between them, and directing Mr van Heeren to file and serve “a complete list of all assets of the partnership”, including the entities holding them (whether or not presently in his control) and their current value, pending which Mr Kidd was not required to take further steps in the case.2

[3] Mr van Heeren responds – by his own affidavits, and those of expert forensic accountants, Allan Greyling and John Carlaw Hagen – he now has complied with Fogarty J’s orders, and seeks orders to progress the mutual accounting ordered by the Judge (although to be amended from those sought in light of more recent developments). Mr van Heeren’s counsel, Mark O’Brien QC, accepts – if I find Fogarty J’s orders materially remain unperformed – orders to progress are premature. That was Fogarty J’s initial view, which I repeatedly have endorsed in minutes since.

Background

[4] The general background to these applications recently has been summarised by the Court of Appeal in associated proceedings between the parties:3

[9] For some 15 years from 1975, Messrs Kidd and van Heeren conducted in partnership a highly profitable international steel trading business. The profits were invested through various entities including Worldwide Leisure in assets located in different parts of the world. Mr Kidd has been seeking an account for his share of these assets since the parties went their separate ways 28 years ago, in January 1991.

[10] In February 1996, Mr Kidd commenced proceedings against Mr van Heeren in the High…

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 Kidd v van Heeren

Details

AGLC: Kidd v van Heeren [2019] NZHC 1761
Case: [2019] NZHC 1761
Decision Date: 25 July 2019

CaseChat Overview and Summary

In Kidd v van Heeren, the plaintiff, Mr Kidd, sought an accounting for his share of partnership assets from the defendant, Mr van Heeren. Mr Kidd applied for specified information and documents from Mr van Heeren and from two Liechtenstein-registered entities associated with him, the Gerda and Timbavati Foundations. Mr van Heeren responded that he had complied with the disclosure orders made by Fogarty J on 14 April 2015. The legal issues the court had to decide were whether Mr van Heeren had indeed complied with the disclosure orders and, if not, what orders should be made to ensure compliance. The court found that Mr van Heeren had not complied with the disclosure orders. The court held that Mr van Heeren had extensive rights under Liechtenstein law to obtain information from the Foundations, but had not exercised those rights effectively. The court ordered Mr van Heeren to provide a complete list of all assets in which he had any interest since January 1991, to exercise all powers at his disposal to obtain all information necessary to provide that list from any person or entity with such information in their power, possession, or control, and to provide certification by an independent lawyer of the steps taken to exhaust the powers available to him in the jurisdiction to obtain the information. The court also ordered Mr van Heeren to provide specified documents in two parts, those held by the Foundations and those held by Mr van Heeren personally. The court's orders were made to ensure compliance with the disclosure orders and to enable an accounting between the parties to be taken.

Orders