Kidd v van Heeren - [2015] NZHC 2475

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-725 [2015] NZHC 2475

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN Defendant

Hearing: 7 October 2015

Counsel:

S Mills QC and B O'Callahan for Plaintiff
B Gray QC and AJ Wakeman for Defendant

Judgment:

9 October 2015

JUDGMENT (No 7) OF FOGARTY J

This judgment was delivered by me on 9 October 2015 at 1.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

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

KIDD v VAN HEEREN [2015] NZHC 2475 [9 October 2015]

Introduction

[1] On 14 April this year1 this Court held that the defendant is issue estopped from denying that he is in partnership with the plaintiff and that the partnership accumulated assets worldwide as found by Satchwell J in the South Gauteng High Court of South Africa.2 The Court went on to require the taking of accounts between the plaintiff and the defendant.3 Further, the judgment required the defendant to pay the sum of USD25m in equivalent New Zealand dollars one calendar month from the date of the judgment.4

[2] On 31 August, the Court declined to vary these orders, to essentially defer the order to pay the sum of USD25m into Court and significantly vary the taking of account orders by making it a mutual taking of account from the outset and otherwise providing a different regime.5 Had that application succeeded, it would have amounted to a substantive stay of the judgment.

[3] On 11 September, the defendant applied for a stay, relying on several grounds:

(a) The merits of the appeal are strong.

(b) If stay is refused, the defendant’s appeal rights would be rendered

nugatory.

(c) A mutual account is not possible pending a factual finding as to the effect of the sale of the Genan shares by the plaintiff to the defendant.

(d)A mutual account is not possible pending the provision a full discovery of documents relevant to the account from the plaintiff.

(e) The plaintiff has not provided security for costs.

1      Kidd v van Heeren [2015] NZHC 517.
2      Kidd v van Heeren South Gauteng High Court 27973/1998, 21 May 2013 at [132].
3      Kidd v van Heeren, above n 1 at [172].
4      At [172](f).
5      Kidd v van Heeren [2015] NZHC 2082 at [6].

(f) The High Court has dismissed the defendant’s applications for variation and discovery, and denied the defendant the opportunity to provide further evidence that he is unable to pay the interim payment of USD25m.

(g) The overall balance of convenience favours a stay being granted.

[4] I have disregarded some minor grounds raised, which I think are subsumed in the above summary, for example, that the stay will not have any material effect on any third parties.

[5] On 7 October, this application for stay was dismissed,6 with the reasons to follow in a separate judgment. This is the separate judgment.

[6] The plaintiff opposed the…

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 2475
Case: [2015] NZHC 2475
Decision Date: 9 October 2015

CaseChat Overview and Summary

In the High Court of New Zealand, Michael David Kidd, the plaintiff, filed a lawsuit against Alexander Pieter van Heeren, the defendant, over an alleged partnership and accumulated assets. The dispute was heard on 7 October 2015, with S Mills QC and B O'Callahan representing the plaintiff, and B Gray QC and AJ Wakeman representing the defendant. The judgment was delivered by Fogarty J on 9 October 2015. The primary legal issue was whether the defendant was entitled to a stay of execution pending appeal. The court considered several factors in determining whether to grant a stay, including whether the appeal rights would be rendered nugatory, the bona fides of the applicant, and the overall balance of convenience. The court also examined whether a mutual account was possible pending a factual finding regarding the sale of Genan shares by the plaintiff to the defendant. After considering the arguments presented by both parties, the court dismissed the application for stay, finding that the overall balance of convenience did not favour a stay being granted. The plaintiff was entitled to costs on a 2B basis.

Orders