Kidd v van Heeren

[2015] NZHC 2455

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-725 [2015] NZHC 2455

BETWEEN

MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN Defendant

Hearing:	7 October 2015
Court:	S Mills QC and B O'Callahan for Plaintiff B Gray QC and AJ Wakeman for Defendant
Judgment:	7 October 2015

JUDGMENT (NO 6) OF FOGARTY J

This judgment was delivered by me on 7 October 2015 at 4.45 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 2455 [7 October 2015]

[1]      Today I have heard an interlocutory application by the defendant for stay of judgment, and part-heard an interlocutory application by the plaintiff that the defendant attend for examination.

[2]      The application for stay of judgment is dismissed.  My reasons will follow in a separate judgment.

[3]      The application that the defendant attend for examination is adjourned part- heard. This is to give the defendant an opportunity to file an affidavit.

[4]      In  para 8  of  the  defendant’s  synopsis  of  arguments  in  opposition  to  this

application, counsel for Mr van Heeren submitted:

8Fogarty J dismissed the Defendant’s Variation Application and the Particular Discovery Application in the 31 August 2015 Judgment and refused the Defendant leave to file further evidence regarding his non-compliance with the order for interim payment, in particular to address the Court’s stated concern that he may have indirect or effective control over the assets of the Timbavati Foundation and/or the Gerda Foundation.

[5]      That Variation Application sought a number of orders, including deferring the “obligation of the defendant to pay the sum of USD25m (in equivalent New Zealand dollars) into Court … until such time as the defendant has that amount or any substantial assets in his direct power or control to enable him to pay that amount into Court”.

[6]      I will not set out all the reasoning of the 31 August 2015 judgment.  It is there to be read.  I refer particularly to [9] – [15]1

[7]      In  sum  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.

1      Kidd v van Heeren [2015] NZHC 2082, 31 August 2015

[8]      He says that neither he nor his wife had any involvement in the settlement of the Gerda Foundation, other than requesting the trustees of the Timbavati Foundation to make the settlement.  He said, “I did not control this process”.  He advises he is not in possession of the Gerda documentation and therefore is unable to confirm what assets are now vested in it.  He says:

As I will hope be apparent from the above, the vast majority of any monies or other assets which I may have held in the late 1980s/early 1990s have been transferred into the Timbavati Foundation and then the Gerda Foundation many years ago and is no longer under my control.

[9]      Paragraphs [42] - [45] of my judgment later followed:

[42]     It is possible that when swearing his two affidavits, Mr van Heeren considered that he was able to depose that assets were no longer in his [direct] power or control consistent with him having ultimate and effective control by one of these mechanisms.   On this basis he possibly drew the distinction in [210] of his first affidavit (cited above) between requesting that the trustees of the Timbatavi Foundation settle the assets previously vested in it upon the Gerda Foundation and controlling this process.   He therefore considered he could distinguish these Foundation managed assets, and assert that he had not accumulated assets in his personal name.

[43]     It  was  not  and  could  not  be  suggested  that  para  [172]  of  the judgment containing the orders intended them to be confined to accumulated assets held in the personal name of Mr van Heeren.  Submissions of abuse of the Court’s processes are very serious.   If accepted they can result in the Court accessing other powers.   In the course of the argument I was left unsure as to whether Mr van Heeren was deliberately obstructing disclosure of assets under his control or, rather, knowing and disclosing of the function of the Timbavati Foundation and the Gerda Foundation, and the Worldwide Leisure Limited’s shareholding etc, felt able to swear that the partnership assets listed, and carefully listed by Satchwell J in her para [132] were not under his control so that he was unable to make a payment of USD25m.

[44]     In the course of the hearing, I entertained the possibility of an adjournment of the hearing of these applications to enable Mr van Heeren to consider his position and file a further affidavit.  I apprehended that Mr Gray was agreeable to that.  Mr Mills was not.  It is a step that I am not prepared to take without agreement of the parties, because each party is entitled to rely upon the application of the High Court Rules and the pleadings and, having undertaken the expenses inherent in all of that, including waiting for and obtaining a hearing, to get a judgment.

[45]      Mr Mills did advise that should this judgment be in his client’s favour, the next step might be to call on Mr van Heeren to appear before the Court and be examined.

[10]     In the course of today’s hearing, I became concerned that if I made orders

requiring Mr van Heeren to attend at Court to be cross-examined on his assets

without having a prior opportunity to set out his response to my criticisms of his evidence in the judgment of 31 August, particularly addressing my reservations in [42] – [45] of that judgment set out above, that the process would be unfair.2

[11]     Accordingly, at the end of the oral argument, I advised counsel that I intend to give Mr van Heeren an opportunity to consider his position and file a further affidavit by 4.00 p.m. on Friday, 30 October.

[12]     I am assuming that a fair reading of his two affidavits to date are that all his wealth is now held by one or other of the Gerda or Timbavati Foundations.  There are continuing issues of the beneficial ownership of Worldwide Leisure Limited and the fate of the gold.

[13]     It must be clearly understood that this opportunity to Mr van Heeren is not to be treated in any way as any qualification of the orders made in the judgment of

14 April.   The immediate purpose of giving Mr van Heeren this opportunity, is to remove the complaint of the unfairness during the process leading to the judgment of

31 August.  But I am flagging it as also an opportunity, if Mr van Heeren wants to take it, to file a more comprehensive affidavit.

[14]     Leave is reserved to counsel to apply to clarify this opportunity being given to Mr van Heeren, by filing counsel’s submissions, exchanged in draft, and if need be, having a further chambers hearing with me.

[15]     Otherwise, these proceedings are formally adjourned to a case management conference on Friday, 6 November at 9.00 am  (by telephone).

2      I am putting aside at this stage the argument that the Court has no jurisdiction at this stage to require Mr van Heeren to be examined.