Kidd v van Heeren - [2015] NZHC 2082

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-725 [2015] NZHC 2082

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN Defendant

Hearing: 24 August 2015

Counsel:

S J Mills QC, B J O'Callahan and E J H Morrison for Plaintiff
B D Gray QC and A J Wakeman for Defendant

Judgment:

31 August 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 31 August 2015 at 4.00 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 2082 [31 August 2015]

Introduction

[1] By judgment dated 14 April this year, the Court declared:1

[171] This Court declares that, by reason of the decision of the South Ganteng 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.

[2] The South African judgment at [126] reads:2

[126] It is difficult to comprehend the joint enterprise of Kidd and Van Heeren constituting anything other than a partnership. This view is fortified when one has regard to more than the creation, movement and inter exchange of steel trading and funds. The acquisition of the worldwide assets by reason of these steel trading profits confirms the finding of a partnership.

[3] Paragraph [132] of the South African judgment reads:3

[132] I am more than satisfied that the partnership of Kidd and Van Heeren, through Genan and Prime NZ as also Tisco and Jocrow and the other entities, made acquisitions throughout the world. These include but are not limited to Prime NZ, Huka Island, Dolphin Island, Cromwell/Wellesley shares which ultimately became a substantial stash of monies, Optech, gold bars and bearer certificates, cash on hand in bank accounts. The full extent of the funds retained and the assets acquired is unknown to me.

[4] Consequent upon this declaration, this Court made a number of orders, all contained in [172] of the judgment which reads:4

[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.

(b) That any amount certified by the High Court on the basis of that account be paid.

(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

1      Kidd v van Heeren [2015] NZHC 517 at [171].
2      Kidd v van Heeren South Gauteng High Court 27973/1998, 21 May 2013 at [126].
3 At [132].
4      Kidd v van Heeren, above n 1, at [172].

the list in [132] of 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 2082
Case: [2015] NZHC 2082
Decision Date: 31 August 2015

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Kidd v van Heeren involved a dispute between Michael Kidd and Alexander van Heeren regarding the recognition of a partnership and the assets accumulated from the partnership. The court was required to decide on two main issues: whether the defendant could defer the payment of an interim amount of USD25 million into court, and whether the defendant could amend the orders to require regular updates on the progress of obtaining documents relevant to the partnership account.

The court dismissed the defendant's application to defer the payment of the interim amount. It found that the defendant had not satisfied the onus of proof and that his affidavits were unsatisfactory and not persuasive. The court reasoned that the defendant's choice of holding assets in various entities was a strategy to protect them from scrutiny and attachment by other jurisdictions. The court also highlighted inconsistencies in the defendant's affidavits and found that he had ultimate and effective control over the assets despite his claims to the contrary.

The court also dismissed the defendant's application to amend the orders to require regular updates on the progress of obtaining documents relevant to the partnership account. The court found that this application was a direct attack on the original orders and that the defendant was attempting to relitigate matters that were the subject of issue estoppel. The court emphasized that the accounting should start with the defendant filing a complete list of all the partnership assets, and that the last clause of the original order could not be used to undermine the primary directive.

In conclusion, the court did not vary or postpone any of the original orders. It found that the defendant's affidavits did not fully inform the court as to the current whereabouts of the partnership wealth and did not displace the reasoning in the original judgment. The court also made an order for costs against the defendant in favour of the plaintiff for these applications and the judgment.

Orders