Kidd v Van Heeren
[2015] NZHC 3250
•16 December 2015
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 DefendantJudgment:
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 43-page affidavit, his fourth affidavit, providing significant additional information to that recorded in judgment (No 6) of 7 October.
[5] In judgment (No 6), I recorded:
[7] In sum[mary] Mr van Heeren has deposed that he and his wife progressively transferred all their personal and business assets to the Timbavati Foundation, including he believed the shares in Fenton Limited and Berrax NV. He advises that another foundation, the Gerda Foundation, now controls the affairs of the Timbavati Foundation all the assets that were previously vested in it.
[6] He has given much more information about the establishment of these two foundations. There is no need to go into the detail of that in this judgment. The most important information is that he explains why the Gerda Foundation came into being.
[7] He explains that he and his former wife decided for the purpose of estate planning and tax purposes to establish in the late 1980s a trust foundation abroad. The Timbavati Foundation was registered in 1989. They began the process of divesting “our personal and business assets” to the Timbavati Foundation. He and his former wife were married “in community of property” in South Africa. Presumably this means that they had a joint estate.
[8] Mr van Heeren explains:
The Timbavati Foundation is an irrevocable, fully discretionary trust. I
believe I was the only beneficiary on incorporation.
2 Kidd v van Heeren [2015] NZHC 2455.
3 Van Heeren v Kidd [2015] NZCA 574.
[9] The Timbavati Foundation was itself set up by another entity called the BIL Trust Corporation, a trust company in Lichenstein, the principal being a Mr Bissig, a professional trustee, who Mr van Heeren has never met. Mr van Heeren believes the current Board member of the Timbavati Foundation is a Ms Claudia Schaedler- Bissig.
[10] He also advised, to the best of his knowledge, no advisory board was in fact ever established.
[11] He says in para [36]:
I stress that I do not and never have had any power (directly, indirectly or remotely) to revoke, vary or alter the Timbavati Foundation powers and the settlement of assets in that Foundation.
[12] That is so, however, he has previously given evidence that he did suggest to the Timbavati Foundation that it settle assets on another foundation, the Gerda Foundation and apropos of that, in [37] of his affidavit, he says he is no longer a beneficiary of the Timbavati Foundation, inferentially referring to the fact that all the assets have gone to the Gerda Foundation. He does say:
Apart from the assets I have discussed in this affidavit, I am not aware of the Foundations owning any assets apart from liquid investments understood to be in the vicinity of USD4-5m.
[13] He does recall that the assets he and his wife transferred to the Timbavati Foundation included cash holdings at the time, their home in Belgium and shares, including shares in BerraxNV and Fenton Limited. Fenton owns Dolphin Island in Fiji. As at January 2012, he has a report from property specialists valuing the business as a going concern at approximately NZD14m. He advises Optech owns an adjacent piece of land next to Huka Lodge and refers to his earlier advice of a shareholding arrangement from Berrax NV and Optech. The current value of that adjacent piece of land in March is around NZD3.5m. He says that Optech still has negative equity. He believes that the cash in Genan was probably transferred to the Timbavati Foundation after liquidation and after he acquired the plaintiff ’s shares in Genan.
Restructuring of the Timbavati Foundation
[14] He explains that the restructuring of Timbavati Foundation and the creation of an entirely new foundation, Gerda in 2009, was a term of the divorce settlement. He had at that time been the sole beneficiary of the Timbavati Foundation. His former wife and he became beneficiaries to the newly incorporated Gerda Foundation.
[15] That is not the end of the Timbavati Foundation. I do not fully understand the relationship between the Timbavati Foundation and the Gerda Foundation. They appear both to have continuing roles. They appear to be interlocking. It is sufficient to appreciate that at least some, if not all, of the capital held by Satchwell J to be partnership assets, co-owned by Mr van Heeren and Mr Kidd, are held by the Timbavati Foundation, in conjunction with the Gerda Foundation.
[16] On 14 October, Schwarzler, attornies at law, wrote to Mr van Heeren’s
counsel and advised that:
We once again emphasize that according to the Foundation documents the Foundation is not allowed to provide Mr van Heeren with any information relating to the regulations or bylaws of the Foundation unless this is in the interests of the Foundation or its beneficiaries. … Considering the current situation, the Board of Foundation is not able to see any reason, why disclosure of information should be in the Foundation’s interests. … A disclosure of information relating to the regulations or bylaws of the Foundation would therefore only be possible, if the disclosure was in the interests of the Foundation’s beneficiaries. We clearly understand this means the disclosure has to be i n the i nt er est of all t he Foundat ion’s beneficiaries.
We have insistently been informed by you that disclosure would be in the interest of Mr van Heeren. We have acknowledged this fact repeatedly and have no doubt about it.
Nevertheless, the Foundation has one other beneficiary who has not yet declared whether disclosure of information is approved. Resp would also be in her own interests.
Therefore, from our perspective, the requirements for a disclosure of any information regarding the regulations or bylaws of the Foundation are not fulfilled.
Finally we would like to stress that your request as representative of Mr van Heeren is nothing uncommon in Lichenstein and court actions can be taken to enforce such a request. We strongly believe that such an approach should also be considered by Mr van Heeren.
(Underlined in the original.)
[17] It may be noted that advice assumes the assets held are not partnership assets, but rather belong to the Foundation. Mr van Heeren then instructed his lawyers in Lichenstein to commence proceedings against the Gerda Foundation requiring them to provide him with a copy of the statutes of the Foundation. The Foundation deed has no description of assets. It does provide its purpose is “for private benefit and not subject to the Foundation’s supervisory authority”.
[18] Article 6 reads:
A person is a beneficiary who has a beneficial interest in the foundation in accordance with the provisions of the statute or the bylaws and the resolution of the Foundation Board.
[19] Mr van Heeren discloses he is a director of Worldwide Leisure but not the managing director. He does not control the company. He discloses he is also involved in the marketing of the Huka Lodge. He advises he is not in a position to put a value on the total assets held by either the Gerda Foundation or the Timbavati Foundation. He advises he has a valuation report for Huka Lodge as at November
2011 of NZD20m.
[20] I note that that definition of “beneficial interest” in Gerda enables “beneficiaries” to be added from time to time. The “beneficiaries” clearly are discretionary by reason of art 8.2:
The beneficiaries have no legal claims whatsoever – regardless of the form thereof – to the Foundation assets or Foundation income viz-a-viz the Foundation. Certificates or other documents may be issued on the beneficial interest which, however, do not represent securities in a legal sense.
[21] Mr van Heeren assures the Court that his former wife and he have no say or control indirectly in the composition of the Board of the Gerda Foundation. He advises there are two people on the Board of the Gerda Foundation. They are Mr Peter van Langeveld and a Mr Christiaan Lamprecht. This Court is aware that
Mr Peter van Langeveld is a close business associate of Mr van Heeren, from evidence that has been led previously in this litigation. This, I add, is not disguised. Mr van Heeren says:
Mr van Langeveld is my primary contact for the Gerda Foundation. Mr van Langeveld also acted as the liaison between myself and the Timbavati Foundation and has done so since 1991. I have known Mr van Langeveld since 1991 when I met him in Antwerp, Belgium. He had been working at PWC in The Hague at the time, and was known to the Board members of the Timbavati Foundation and had worked with them closely on a number of issues, and so had become familiar with the structure of the Timbavati Foundation and had advised the Board.
[22] Mr van Heeren also advises that his former wife and he are the only beneficiaries of the Gerda Foundation. He says:
And we do not have any control, either directly, indirectly or remotely, over the Gerda Foundation or the members of the Board or their appointment.
[23] Although he agrees that he and Mr van Langeveld have known each other for a long time, he says it is not correct that this relationship provides him with any degree of control over Mr van Langeveld either directly, indirectly or remotely. He says so far as he was aware, there was no advisory board of the Gerda Foundation.
[24] He has had some operational involvement in assets of the Gerda Foundation, such as:
Upon the request of the Board, I have been retained from time to time providing advice regarding some of these assets and I have taken care of certain operational matters which were necessary for those assets. This involvement concerns Worldwide Leisure Limited in New Zealand and Grande Provence Properties (Pty) in South Africa.
Beneficial ownership of Worldwide Leisure Limited
[25] The OIO decision records Mr van Heeren as transferring his international private assets into trust entities. He says that he transferred the shares in Worldwide Leisure Limited to Saraceno Holdings BV and that they are ultimately held on behalf of the Timbavati Foundation.
Tranz Rail
[26] Mr van Heeren says the investment in Tranz Rail was made in 1993. It was not made using either partnership assets or proceeds from the partnership. From his description, it would appear that the Timbavati Foundation acquired the shares via a shelf company, Tessaro Developments Limited, as a trustee on behalf of Dunsel Investments. That was an investment company owned by the Timbavati Foundation.
Commonly controlled entities
[27] He explains that he considers that Prime Pacific NV, Grande Provence Properties and Dunsel are not partnership assets. He also goes on to say that they are not connected with the partnership or the proceeds from the partnership. They are all ultimately assets of the Gerda Foundation.
Gold
[28] He explains that the gold accounts or certificates were no more than options to buy gold in the future at an agreed price. He agrees there was physical gold bullion but asserts that the plaintiff took the full amount of 30 kilograms of physical gold bullion in November 1990, despite the fact that he was only to take a half-share. He refers to documentation in support of this. He refers to corroborating faxes which confirm his view that he was not aware that Mr Kidd had uplifted all the gold. He argues that, if anything, the plaintiff is in fact liable to account to him for 15 kilograms of physical gold bullion.
Other sources of income
[29] He advises he has two sources of income. The first from the Foundations, the amount being qualified as a pension of approximately NZD112,000 per year. Secondly, a consultancy fee of approximately $39,000.
[30] Which brings us to his conclusion that he is not worth USD25m and does not have assets sufficient to enable him to pay the amount as ordered by this Court.
[31] It appears that the root of the lack of detailed financial information at the present time is that that information cannot be disclosed without the consent of Mr van Heeren’s former wife, as the other beneficiary. See the advice of 14 October, set out above in [16].
[32] Indirectly, Mr van Heeren does discuss the potential size of the assets as listed in [132] of the judgment of Satchwell J in South Africa. He does this by discussing the history of the proceeds of the sale of the Cromwell/Wellesley Resources shares and the Tranzrail shares.
[33] He gives guarded advice about what he can recall as to what assets were transferred to the Timbavati Foundation:
I cannot accurately state what assets were transferred to the Timbavati Foundation at the time the Timbavati Foundation was established or what the values of any assets were at the time they were divested.
[34] In 2009 Mr and Mrs van Heeren divorced. Her lawyers insisted the Timbavati Foundation should be restructured and an entirely new foundation established in which she was expressly recognised as a beneficiary. She and he requested the Board of the Timbavati Foundation to facilitate this and they agreed to it. “The Board of the Timbavati Foundation therefore facilitated the establishment of the Gerda Foundation.” Mr van Heeren is not sure of the detail but he believes:
… that the structure of the resettlement was that the Gerda Foundation replaced me as the sole named beneficiary of the Timbavati Foundation and my former wife and I became beneficiaries to the newly incorporated Gerda Foundation.
I did not determine how this would be done and was in no position to dictate to anyone or exercise any form of control over what had to be done. For me, it was a technical and legal restructuring operation, controlled and implemented by the Foundation Board as it saw fit.
[35] By a memorandum of counsel for the defendant dated 7 December, Mr Wakeman, counsel for the defendant, filed a copy of the proceedings filed in the Court of Justice in Lichenstein as referred to in [17] of this judgment. These proceedings were filed on 4 December. The particulars of fact are directly related to the ability of Mr van Heeren to comply with the orders of this Court.
[36] Without burdening this judgment with a copy of the complete proceedings, I advise that I have read the English translation completely and I record the propositions in it which I think bear directly on the ability of Mr van Heeren to comply with the order of this Court. These are also propositions directly relevant to whether he should be examined in person or whether there should be further questions asked of him by the plaintiff.
[37] The pleadings are an application for the enforcement of a right of information pursuant to art 552 para [9] of the Lichenstein Persons and Companies Act (PCA). The application is to the Court of Justice of the Principality of Lichenstein. It has a file number “FL-9490 vaduz”.
[38] Paragraph [1] records that the applicant is a beneficiary (in a broader sense) of the Gerda Foundation. It records Dr Christiaan Lamprecht and Mr Peter van Langveld as members of the Foundation Board but adds as new information that each of them has sole signing powers.
[39] It cites art 8.2 of the Foundation Articles as stipulating that the beneficiaries have “no legal claims whatsoever – regardless of the form thereof – to the Foundation assets or Foundation income viz a viz the Foundation”.
[40] It also records that art 12.7 stipulates that the “founder” expressly reserves the right to revoke, amend and dissolve the Foundation within the meaning of art
552, para 30(1) of the PCA. It is to be noted that the Foundation Articles contain no provisions whatsoever on the scope and exercise of the rights of information by beneficiaries. The founder appears to hold the ultimate power.
[41] Key questions to be asked therefore are:
(a) Who is the “founder” of the Gerda Foundation?
(b)What is the relationship between Mr van Heeren and the “founder”, assuming Mr van Heeren is not the “founder”.
(c) Whether the founder is BIL Trust Corporation and/or its principal, Mr Bissig (referred to [9] above)?
(d)Alternatively, is the founder the Timbavati Foundation? If so, does the Timbavati similarly provide for a person to have the power to revoke, amend or dissolve the foundation? And who is that person?
[42] I observe that this Court continues to analyse the facts on the presumption that persons in control of valuable assets, which they believe they own, do not usually give them away or lose control of them. This does not mean that they have not been put into structures in an attempt to be beyond the reach of courts. However, usually, out of sight, there is a mechanism of control. For this reason, it is of no surprise to the Court that arts 8.2 and 12.7 are in the Gerda Foundation Articles. It is also likely that the person with the title of “founder”, with the power to dissolve the Gerda Foundation, is a person within or closely associated to the advisers who formed Timbavati and Gerda.
[43] Returning to the proceedings, there is no doubt that Mr van Heeren is personally requesting information as to the assets under the control of the Gerda Foundation Board for the purpose of reporting to this Court.
[44] The claim records advice already known to this Court that the Foundation is required not only to take the interests of one of the beneficiaries into account, but any provision of information must also be in the interests of the other beneficiaries. However, in a letter of 14 October 2015, the lawyers for the Foundation state that no response has been received from the other beneficiaries in respect of their possible approval for the provision of information which is why it is not possible to comply with the request for information. I note this seems to suggest there is more than one other beneficiary, in addition to Mr van Heeren’s wife.
[45] The claim also contends that, on the basis of the information that Mr van Heeren’s legal representative has and the existing Foundation Articles, the Foundation Board of the defendant foundation would be able to pass a distribution resolution in favour of the applicant at the present time. That being the case, his
legal status is such that he is afforded the rights to information undivided according to art 552, para 9 of the PCA. There is the submission:
In the case of discretionary foundations, strong rights to information are especially necessary. They are the only guarantees that the beneficiary, as the addressee of the foundation’s purpose, has that the foundation assets are being managed and used in accordance with their designated purpose.
[46] Issue appears to be taken with the proposition that the other beneficiary or beneficiaries need to agree. It is submitted in the application:
In this respect, it is to be noted that article 552, paragraph 9 of the Persons and Companies Act generally describes the right to information of a (also discretionary) beneficiary such that he has an entitlement as far as it relates to his rights.
[47] The claim takes issue with the proposition that the Foundation cannot disclose information to third parties (who I had previously inferred is a reference to this Court). A key submission then made by Mr van Heeren’s lawyers is:
However, this overlooks the fact that the matter at issue is not a disclosure of information to third parties but the provision of information to a beneficiary of the Foundation.
[48] Mr van Heeren has sought the following information from the Gerda
Foundation:
(a) An explanation of the legal relations between the defendant and
Timbavati Foundation.
(b) Confirmation of who the beneficiaries of the Gerda Foundation are.
(c) Confirmation of who the members of the Foundation Board of the
Gerda Foundation are.
(d)Information of whether Mr van Heeren is in other legal relations with the Gerda Foundation apart from his capacity of being a discretionary beneficiary and, if so, whether he is paid for this.
(e) A statement as to whether the Gerda Foundation has an advisory board, protector or other special executive bodies and, if so, provision of the names and addresses of the persons filling these executive bodies within the meaning of art 552, para 28 of PCA and also submission of any regulations.
(f) Notification of the founder of the Gerda Foundation.
(g)Statement as to whether Mr van Heeren has a direct/indirect right to give instructions to the Gerda Foundation board that places him in a position to revoke the Gerda Foundation or to amend its statutes and/or by-laws or other regulations.
(h)Presentation of the foundation deed and the supplementary foundation deed (including any amendments).
(i)Presentation of the regulations and by-laws (including any amendments).
(j)Presentation of an overview of all assets acquired by the foundation, directly or indirectly, by Mr van Heeren and/or whomsoever.
(k) In the event that assets of the Gerda Foundation have been sold since
2009, to whom these were sold and at what counter value including the related resolution.
(l)A statement of whether any assets of the foundation are or can be attributed wholly or partly to the assets which are held by the South African Court and have been confirmed in the New Zealand Court to be assets of the business partnership between Michael David Kidd and Mr van Heeren.
(m) An up-to-date brief summary and estimated value of these assets.
(n)Balance sheets, annual accounts, accounting vouchers, any annual reports and audit reports of the companies in which the foundation holds a participating interest, particularly but not restricted to assets transferred to the Gerda Foundation by or on behalf of Mr van Heeren, including but not limited to:
(i) Fenton Limited
(ii) Berrax NV
(iii) Optech International Limited
(iv) Worldwide Leisure Limited.
(o)Presentation of balance sheets and profit and loss accounts in accordance with art 17 of the Articles for the years 2009 to 2015.
(p)Overview of the distributions made since 2009 out of the foundation including the related resolution.
(q)Resolutions of the foundation concerning endowments of assets and distributions.
(r) Presentation of mandate contracts and other contractual relations of the foundations.
(s)Statement about who receives the balance sheets and profit and loss accounts of the Gerda Foundation.
[49] These are all relevant questions/requests. Formally, I make those the questions and requests of this Court, as well as of the defendant. I add a question as to the status and powers of the founder. Either the Board of the Gerda Foundation or Mr van Heeren, or both if they both know, should explain more fully the status and power of the founder, why power to bring the Foundation to an end is in the hands of some unknown and not to be disclosed founder, rather than to Mr van Heeren and his
former wife for whose benefit the foundations were formed. Second, can the
“founder” be directed by anyone?
The issue for this Court
[50] The essential issue for this Court now is whether to pursue enforcement of the orders of the High Court set out above, by direct examination in Court of Mr van Heeren or not.
[51] Rule 7.48 gives very wide powers to the Court:
7.48 Enforcement of interlocutory order
(1) If a party (the party in default) fails to comply with an interlocutory order or any requirement imposed by or under subpart 1 of Part 7 (case management), a Judge may, subject to any express provision of these rules, make any order that the Judge thinks just.]
(2) The Judge may, for example, order—
(a) that any pleading of the party in default be struck out in whole or in part:
(b) that judgment be sealed:
(c) that the proceeding be stayed in whole or in part: (d) that the party in default be committed:
(e) if any property in dispute is in the possession or control of the party in default, that the property be sequestered:
(f) that any fund in dispute be paid into court:
(g) the appointment of a receiver of any property or of any fund in dispute.
(3) An order must not be enforced by committal unless the order has been served personally on the party in default or that party had notice or knowledge of the order within sufficient time for compliance with the order.
[52] Rule 7.48(2), it may be noted, contains examples only of the orders that can be made. In this case, Mr Kidd has sought an order for examination.
[53] It is common ground that r 7.48 remedies tend to be significant and severe, and are not made lightly. There has to be a degree of fault because the concept is
orders made against a party “in default” who has “failed” to comply with an
interlocutory order.
[54] To date, I am not satisfied:
(a) That Mr van Heeren is a party in default, i.e. is personally responsible for the failure to make a payment of USD25m into Court; or
(b) That an order for examination would be an effective remedy.
[55] On the contrary, I consider the fourth affidavit and the memorandum of
7 December, attaching Mr van Heeren’s claim to the Court of Justice in Liechenstein, both of which I have examined, to be two considerable steps along the way to understanding where the partnership assets or their investments are held, and how they are held, and who ultimately controls them.
[56] This Court remains of the view, as it has not been dispelled by the evidence so far, that it is more probable than not that Mr van Heeren himself or with his ex- wife have retained effective control over the disposition of those assets by reason of his relationship, direct or indirect, with the founder of the Gerda Foundation and/or one or more members of the Board. There is a possibility also that there is an impasse because of the need for Mr van Heeren to reach agreement with his wife.
[57] It is my judgment that the process of enquiry of Mr van Heeren should continue to be done by way of inquiries and judgments of this Court, rather than have him appear before this Court and be cross-examined.
[58] In the meantime, I think the criticisms advanced by Mr O’Callahan of Mr van Heeren’s disclosure and non-payment to date, advanced as the basis for an order for examination, can be converted to a further set of questions to be asked of Mr van Heeren by Mr Kidd.
[59] Upon reflection, I think that Mr Kidd’s questions should be formulated, in the
first instance, by Mr Kidd’s counsel and submitted to the Court for approval, copies
being served on the solicitors for Mr van Heeren. To that end, I give leave to Mr
Kidd’s solicitors to follow that course.
[60] The questions are intended to be in addition to the questions and information which Mr van Heeren has requested which I have listed in [48]-[49] above.
[61] In the New Year a timetable can be set for the answers to these questions. That can be settled by consent or fixed by the Court. If the latter, that will be in the same hearing dealing with the application for confidentiality orders, which is discussed below.
Summary
[62] The application under r 7.48 for Mr van Heeren to be called to be examined was not successful. In summary, the Court endorses the questions Mr van Heeren is asking, as set out in [48] has added an additional question of Mr van Heeren and of the Gerda Board, in [49] and will receive additional questions formulated by Mr Kidd’s counsel and submitted to the Court for approval. But the application for examination of Mr van Heeren is dismissed.
Costs
[63] The application for examination was not wholly unsuccessful as the Court is considering responding to the unsatisfactory non-performance of the orders of the High Court, by other means. For this reason, costs lie where they fall on this application.
Confidentiality
[64] On 9 November last, the defendant made an application for orders restricting access to the Court file in respect of the fourth affidavit, which is the principal subject of this judgment. There has been no time to arrange for a hearing in respect of this application.
[65] I consider the fourth affidavit to fall within the ambit of the order made on
9 June restricting access to the Court file and use of affidavits filed by the defendant.
To allay any doubt, I amend that interim order specifically in respect of the fourth affidavit in the same terms.
[66] It is a different question, however, whether this judgment should be redacted or released to the public in full in the usual way.
[67] I now make an extraordinary interim order restricting publication of this judgment to: the plaintiff and the defendant, their solicitors and counsel, to the persons associated with the two foundations, as named in this judgment, and to their legal advisers, all pending receiving any application by the defendant for redaction of any part of the judgment, such application to be filed and served by the first sitting day of the High Court in the New Year, being 3 February 2016.
[68] That application is to be drawn to my attention on filing and will be immediately subjected to case management by myself.
[69] For now, the public, particularly the media, will be given this paragraph only. The public will be informed that there has been a further judgment which has dismissed the application that Mr van Heeren be examined in this Court but has replaced that with questions formulated by the Court and to be formulated by the plaintiff. Further, that by reason of a pending application for orders restricting access to the Court file, and a likely application that names mentioned in this judgment be redacted, the judgment itself will not be released to the public until sometime in February 2016, after I have heard and adjudicated on the applications for confidentiality. An interim confidentiality order has been made defining the persons with access to the whole judgment.
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