Kidd v Van Heeren - [2015] NZHC 3250

INTERIM ORDER RESTRICTING PUBLICATION OF THIS JUDGMENT UNTIL FURTHER ORDER OF THE COURT

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-725 [2015] NZHC 3250

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN Defendant

Hearing: 23 November 2015

Counsel:

B O'Callahan and EJG Morrison for Plaintiff
B Gray QC, A Wakeman and D Williams for Defendant

Judgment:

16 December 2015

JUDGMENT (NO 8) OF FOGARTY J

This judgment was delivered by me on 16 December 2015 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors: Kirkland Morrison O’Callahan Limited, Auckland
Fee Langstone, Auckland

KIDD v VAN HEEREN [2015] NZHC 3250 [16 December 2015]

Introduction

[1] In the first judgment dated 14 April 2015, the following declaration and relevant orders were made:1

[171] This Court declares that, by reason of the decision of the South Gauteng High Court of South Africa (27975/1998, 20 May 2013, Satchwell J), the defendant is issue estopped from denying the partnership and the accumulated worldwide assets of the partnership, as found by the Judge, particularly in [126] and [132] of her judgment.

[172] The following orders are made:

(a) An account is to be taken between the plaintiff and the defendant to determine the amount due to the plaintiff arising out of the plaintiff’s claim as a partner against the defendant.

…

(c) The defendant, as the principal accounting party, is required to account to the plaintiff by filing in the High Court and serving on the plaintiff within 30 days of this judgment a complete list of all assets of the partnership, not confined to the list in [132] of the South African judgment, other than any held by the plaintiff, including:

(i) a description of the entities holding the assets; (ii) a description of the assets; and
(iii) the current value of the assets.

(d) In addition, if any assets have been disposed of or otherwise he has lost control of, they should be listed with details of loss of control, advice as to the his knowledge as to who has control of those assets, a description of those assets and his estimated current value of those assets.

…

(f) That the defendant pay the sum of USD25m in equivalent New Zealand dollars as at the date of payment into Court at the latest, being one calendar month from the date of this judgment, with leave to apply for an extension of time.

…

1 Kidd v van Heeren [2015] NZHC 517.

[2] In judgment (No 6), delivered 7 October last, I dismissed an application for stay and adjourned the application that the defendant attend for examination. This was to give the defendant an opportunity to file a further affidavit.2

[3] The hearing resumed on 23 November 2015. At the beginning of that hearing

I was advised that the Court of Appeal do not intend to lift the stay of the judgment.3

[4] Since 7 October, Mr van Heeren has sworn a…

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 [2015] NZHC 3250
Case: [2015] NZHC 3250
Decision Date: 16 December 2015

CaseChat Overview and Summary

In the case of Kidd v Van Heeren, the plaintiff, Michael David Kidd, sought to enforce a previous High Court decision against the defendant, Alexander Pieter Van Heeren, which required him to provide information on the assets of a partnership between the two parties. The South Gauteng High Court had previously ruled that Van Heeren was estopped from denying the existence of the partnership and its accumulated assets. The New Zealand High Court was tasked with enforcing this ruling and ensuring that Van Heeren complied with the ordered accounting and asset disclosure.

The court heard Van Heeren's arguments that he did not have control over the assets, which were held by various foundations, and that he was unable to provide the required information due to the restrictions imposed by the foundation's bylaws. Van Heeren had initiated proceedings in Liechtenstein to compel the Gerda Foundation to disclose information about its assets and governance, but this attempt was unsuccessful due to the need for consent from all beneficiaries.

The court determined that while Van Heeren's failure to comply with the previous order was concerning, it was not yet clear whether he was in default or whether compelling him to appear in court for examination would be an effective remedy. The court believed that further inquiries and questions, rather than direct examination, were necessary to understand the control and disposition of the assets in question. Therefore, the application for Van Heeren's examination was dismissed. The court did, however, allow Kidd to formulate additional questions for Van Heeren, subject to court approval, to aid in the ongoing inquiry into the partnership's assets.

Additionally, the court addressed applications for confidentiality concerning the court file and the potential redaction of certain parts of the judgment. An interim order was made restricting the publication of the judgment until further order of the court, considering pending applications for redaction and confidentiality. This ensured that sensitive information would not be prematurely disclosed to the public while the court considered the appropriate measures for protecting the interests of all parties involved.

Orders