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…

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 2455
Case: [2015] NZHC 2455
Decision Date: 7 October 2015

CaseChat Overview and Summary

In the case of Kidd v van Heeren, the High Court of New Zealand was called upon to address two interlocutory applications. The plaintiff, Michael David Kidd, sought an order for the defendant, Alexander Pieter van Heeren, to attend for examination. Concurrently, the defendant applied for a stay of judgment. The applications were heard on 7 October 2015. The primary legal issue the court had to decide was whether to grant the defendant's application for a stay of judgment and if the plaintiff's application for the defendant's examination should be adjourned pending further affidavit evidence. The court dismissed the application for a stay of judgment and adjourned the plaintiff's application to allow the defendant to file an affidavit. The court explained that the adjournment was necessary to avoid a perceived unfairness in the process that led to the earlier judgment of 31 August 2015, where the court had dismissed the defendant's Variation Application and the Particular Discovery Application. The court provided the defendant an opportunity to address the concerns raised in the earlier judgment, specifically regarding the control over assets held by the Timbavati Foundation and the Gerda Foundation.

The court's reasoning was rooted in ensuring procedural fairness, particularly in light of the earlier judgment's findings about the defendant's indirect control over the assets. The court highlighted that the adjournment was not intended to qualify the earlier orders but to allow the defendant to respond comprehensively to the criticisms in the judgment. This decision aimed to facilitate a more balanced and fair judicial process, allowing the defendant to adequately address the court's concerns before any further steps were taken. The court also noted that the adjournment would not affect the jurisdiction to require the defendant's examination and reserved leave for counsel to clarify the opportunity provided to the defendant.

Orders