Kidd v Van Heeren
[2022] NZCA 117
•7 April 2022 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA603/2021 [2022] NZCA 117 |
| BETWEEN | THE ESTATE OF MICHAEL DAVID KIDD by its administrator BRYAN JOHN COOPER |
| AND | ALEXANDER PIETER VAN HEEREN |
| Hearing: | 8 February 2022 |
Court: | Kós P, Clifford and Gilbert JJ |
Counsel: | S J Mills QC and B O’Callahan for Appellant |
Judgment: | 7 April 2022 at 9 am |
JUDGMENT OF THE COURT
A The appeal is allowed.
BThe order that the respondent’s litigation expenses are to be paid from the balance of the interim payment sum currently held in the High Court is discharged.
C The cross-appeal is dismissed.
DThe respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
Messrs Kidd and van Heeren have now been embroiled in litigation for over a quarter of a century, ranging across New Zealand, South Africa and now Liechtenstein. The dispute concerns assets formerly held in a steel-trading partnership dissolved in 1991. Mr van Heeren, who managed the finances and controlled most of the assets, misappropriated a substantial proportion due to Mr Kidd upon an equal division. The value of the assets, in 1991 terms, without interest or costs, is approximately USD 50.895 million.
It is said that Mr van Heeren has spent in excess of NZD 11 million on legal costs; Mr Kidd in excess of NZD 8 million. Mr Kidd has now died, and the litigation is continued by his executor.[1] Economically exhausted, Mr Kidd resorted to a litigation funder. The funder has taken most of the sums so far paid to Mr Kidd on account.
[1]For ease of understanding, we will continue to refer to the claim as Mr Kidd’s.
Mr van Heeren now says he too is economically exhausted. He sought and obtained orders that his litigation expenses in current New Zealand proceedings and in respect of enforcement proceedings overseas be met from the balance of an interim payment sum he had paid into the High Court.[2]
[2]Kidd v van Heeren [2021] NZHC 2663 [Judgment appealed].
This appeal and cross-appeal concern those orders.
Background
As this case has been before us recently, on a related issue, we can largely repeat what we said on that occasion by way of background.[3]
[3]Kidd v van Heeren [2021] NZCA 244 [CA release of interim payment judgment].
Between 1975 and 1991 Messrs Kidd and van Heeren had operated in partnership as international steel traders. Mr Kidd was based in South Africa, Mr van Heeren in this country. Unknown to Mr Kidd, Mr van Heeren had defrauded him of substantial partnership proceeds and intermixed these with his own assets. As we noted on the last occasion, all this was determined conclusively by Satchwell J in the High Court of South Africa in 2013.[4]
[4]At [2], citing Kidd v van Heeren SGHC Johannesburg 27973/1998, 20 May 2013 [SA judgment].
Mr Kidd had been seeking redress since issuing proceedings in the High Court in New Zealand in 1996. But those proceedings were stayed because a deed of indemnity relied on by Mr van Heeren required disputes be determined in South Africa.[5] So Mr Kidd commenced proceedings in South Africa in 1998. Fifteen years later, this produced the judgment referred to at [6]. Mr van Heeren had elected not to give evidence in the trial. In the course of her judgment, Satchwell J found the deed of indemnity, which had justified the original stay in this country, had been procured by fraud and was therefore void.[6] The Judge also found that the partnership assets included Genan Trading Co NV, Prime International Ltd, Galaxy Properties (Pty) Ltd, shares in Jocrow Steel Ltd, Huka Lodge, Dolphin Island, shares in Cromwell Corp Ltd/Wellesley Resources Ltd (or the cash substitute thereof), Optech International Ltd, gold bars, bearer certificates and cash in bank accounts.[7] Leave to appeal was denied by the Supreme Court of Appeal of South Africa.[8]
[5]Kidd v van Heeren [1998] 1 NZLR 324 (HC).
[6]SA judgment, above n 4, at [171] and [173].
[7]At [132].
[8]Van Heeren v Kidd SCA 717/13, 21 October 2013.
Mr Kidd then renewed proceedings in New Zealand, seeking an account determining his entitlements to partnership assets. He applied also for an interim payment of USD 25 million under r 7.71 of the High Court Rules 2016. This sum was an expert’s assessment of half the contemporaneous value of the assets Mr Kidd would be entitled to an account of. Fogarty J found the South African judgment gave rise to an issue estoppel as to the composition of the partnership assets.[9] As to interim payment, Fogarty J held:
[9]Kidd v van Heeren [2015] NZHC 517 at [117].
[159] … As the learned authors of McGechan explain in HR7.70.01 orders tend to be made where liability has been admitted or judgment already obtained.
[160] Essentially, this judgment as to issue estoppel falls into that category. As already found, it is beyond argument now that these two men are partners. They remain so until there is a final accounting between them. It is beyond argument that the assets of the partnership include the acquisitions and property described [above] and, inevitably, any subsequent acquisition of assets from those assets over the past nearly quarter of a century.
…
[165] The only question is whether or not ultimately the Court thinks that [it] is just to make that order now.
[166] The Court has to take into account the possibility that there may have been subsequent disastrous investments by Mr van Heeren. The Court can also take into account the risks that Mr Kidd might lose some of an interim payment during the course of the balance of litigation or that Mr Kidd might alienate it in a way which prevents an interim payment being recovered.
[167] Mr Gray has submitted that the cases in New Zealand and the UK do not discuss the need for security for repayment. He submits:
Presumably, they do not need to do so because an order is not appropriate where there is any possibility of the need to repay.
[168] In my judgment, the only relevant possibility for an order of repayment is that Mr Kidd may need to repay part if it turns out Mr Browning has over-estimated Mr Kidd’s share.
The following orders were then made:[10]
(a)That the defendant pay the sum of USD25m in equivalent New Zealand dollars on 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.
(b)That the plaintiff submit to the Court a plan of investment and use of that sum, pending completion of the taking of account of the assets of the partnership.
[10]At [170] (footnote omitted).
As we noted on the last occasion we dealt with this case, the sum required was not paid within one month. Nor within one year. Instead it was only paid six years after the hearing — and five years and 10 months after the judgment.[11]
[11]CA release of interim payment judgment, above n 3, at [6].
Before making payment Mr van Heeren sought variation of the orders “until such time as [he] has that amount or any substantial assets in his direct power or control to enable him to pay that amount into Court”. Fogarty J dismissed that application.[12] Then Mr van Heeren sought stay of judgment. That application too was dismissed.[13] Next, he appealed the issue estoppel finding and the interim payment order to this Court. That appeal was dismissed.[14] Leave to appeal to the Supreme Court was declined on 9 December 2016.[15] Variation, stay and appeal were all unavailing, therefore. The money should have been paid into Court in May 2015.
[12]Kidd v van Heeren [2015] NZHC 2082.
[13]Kidd v van Heeren [2015] NZHC 2475.
[14]Van Heeren v Kidd [2016] NZCA 401, [2017] 3 NZLR 141 [CA issue estoppel judgment].
[15]Van Heeren v Kidd [2016] NZSC 163 [SC leave decision].
In 2017 Mr Kidd applied for an order seeking appointment of receivers to sell the assets of Worldwide Leisure Ltd (WWL), a New Zealand company that owned Huka Lodge — one of the assets Satchwell J had found to have been acquired by Mr van Heeren using partnership assets (and therefore to have become such an asset itself).[16]Orders were made in the High Court later that year appointing receivers to Huka Lodge.[17] On appeal and cross-appeal in 2019 this Court instead appointed receivers to WWL:[18]
[84] … for the purpose of realising as soon as reasonably practicable sufficient of the company’s assets found to be partnership assets, being Huka Lodge and (if necessary) Dolphin Island, to enable USD 25 million to be paid into the High Court.
[16]SA judgment, above n 4, at [57]–[60].
[17]Kidd v van Heeren [2017] NZHC 3199.
[18]Kidd v van Heeren [2019] NZCA 275, (2019) 24 PRNZ 596. Dolphin Island is a resort in the Fiji islands.
It may be noted that Mr van Heeren was held to be a party in default:
[35] Fogarty J ordered Mr van Heeren to pay USD 25 million into Court by 14 May 2015. Mr van Heeren’s applications to vary or stay that order were declined. His appeal to this Court against the order was dismissed. The Supreme Court declined leave for a further appeal. Despite this, not one dollar has been paid, over three years later. In our view, there cannot be any doubt Mr van Heeren has failed to comply with the order and therefore, for the purposes of the rule, is a party in default.
We bear that conclusion in mind when considering Mr van Heeren’s continued protestations that he has been unable to comply because of legal obstacles placed in his way by those now holding his — or, it may be, the partnership’s — assets. It does not escape us that those obstacles were erected entirely by Mr van Heeren himself.
In 2019 we observed:
[72] Mr van Heeren submits the appropriate course is to remit the proceeding to the High Court to progress the account to a final resolution and to enable his further application to vary the Interim Payment Order to be heard. The context for this submission is that in September 2017, shortly prior to the hearing in the High Court, Mr van Heeren applied for an order to progress the account in the 2014 Proceeding. Then, on 8 November 2017, which was the third day of the hearing, Mr van Heeren made a further application to vary the Interim Payment Order. In support of that application he asserted that Mr Kidd is confined to a claim in debt. He contended that the maximum total debt as at January 1991, the date of dissolution of the partnership, was USD 1,323,905. He says total interest cannot exceed the principal because of the in duplum rule which applies to all debt claims under the law of South Africa. On that basis Mr van Heeren claims his liability to Mr Kidd cannot exceed USD 2.646 million. He asked the Court to vary the Interim Payment Order accordingly and he advanced a proposal for this sum to be borrowed by [WWL] and paid into Court. Mr van Heeren repeated his earlier claim that he cannot pay USD 25 million and maintained the Court was in error in setting the payment at that level. In resisting the appeal, Mr van Heeren argues that Mr Kidd is adequately protected by the existing restraining orders and any further relief is “premature”. [WWL] supports this submission.
[73] We disagree entirely. We can see no justification for setting the clock back and revisiting the correctness of the Interim Payment Order. There has been no change of circumstances that could justify that course. The interests of justice in this case overwhelmingly demand that meaningful relief be granted to enforce that order. The context is highly relevant. Satchwell J found that Mr van Heeren had been “cheating” Mr Kidd out of partnership profits for years at the time he fraudulently sought to procure a binding indemnity precluding all claims in January 1991. Mr Kidd has been pursuing his entitlement to his share of the partnership assets ever since. Notwithstanding the final judgment given in his favour in South Africa giving rise to an issue estoppel as to the extensive partnership assets held by Mr van Heeren or his associated entities, Mr Kidd has still not received anything towards his entitlement. Fogarty J was satisfied Mr Kidd will receive at least USD 25 million following the account. This Court was not persuaded to interfere with that assessment and the Supreme Court declined leave for a further appeal against the order. Mr Kidd has been kept out of his entitlement to his share of the partnership assets for over 28 years and he is now in his mid-seventies.
[74] The Interim Payment Order made by Fogarty J was intended to provide immediate partial relief to redress the serious injustice Mr Kidd has suffered for well over two decades. Mr van Heeren’s various attempts to overcome the effect of that order have all failed. For the Court now to deny Mr Kidd a remedy would deliver the result Mr van Heeren has sought all along and perpetuate the injustice the Interim Payment Order was designed to redress. This Court said in November 2015, when denying Mr van Heeren’s application for a stay of the Interim Payment Order, that Mr Kidd is entitled to the fruits of his judgment “now” and he should not have to wait indefinitely “as if the High Court judgment does not exist”. That observation applies with even greater force now, over three years later. As Lord Neuberger said, if court orders are disobeyed, a sanction is almost inevitable to ensure they continue to be respected. We have no hesitation in concluding that relief is justified. In our view, the Court would be failing in its duty to deny it. The only real issue is as to the appropriate form of relief.
Huka Lodge was sold in February 2021. The USD 25 million sum was then paid into the registry of the High Court at Auckland on 4 February 2021. As we said on the last occasion, to say that it was paid under compulsion is an understatement.[19]
Application for release of interim payment
[19]CA release of interim payment judgment, above n 3, at [10].
On 2 February 2021 Mr Kidd applied for release of the whole or part of the interim payment. The application was premised on difficulties Mr Kidd had got himself into with a litigation funder, LCM Operations Pty Ltd. The application read:
As a consequence of Mr van Heeren’s failure to comply with the order to make the payment within 30 days of the order, in late 2018 Mr Kidd was compelled to obtain litigation funding by way of a non-recourse loan to continue with his claims. The continuing refusal of the defendant to comply with the order has now meant that Mr Kidd has been unable to repay the now fully drawn loan with the result that US$17,256,091.16 is now claimed by the litigation funder. From 14 May 2021, Mr Kidd’s obligation to the funders will accrue interest at the rate of 30% per annum, compounding, on the outstanding amount.
As we noted last time, so ruinous was the litigation funding arrangement that just a sum borrowed of USD 4.3 million underlay the USD 17.25 million then owed.[20]
[20]At [11].
On 12 February 2021 Jagose J ordered a modest release only from Court‑controlled funds. He said that:[21]
[6] … given the risks of non-recovery from LCM, and the proximity of trial and its prompt determination — nothing more of the interim payment presently should be released than is required to maintain progress to and completion of trial.
Orders appear to have been made for payment of one expert’s invoices out of the interim payment, and each party’s “specified actual and contemplated litigation expenses proposed by counsel” by WWL, whose remaining assets had been frozen.[22]
[21]Kidd v van Heeren HC Auckland CIV-2014-404-725, 12 February 2021 (Minute of Jagose J).
[22]Kidd v van Heeren HC Auckland CIV-2014-404-725, 19 February 2021 (Minute of Jagose J) at [3(b)]. The freezing orders were imposed by Fogarty J on 14 June 2017: Kidd v van Heeren [2017] NZHC 1304.
Mr Kidd died on 18 February 2021. For ease of understanding, we continue to refer to the appellant, now the administrator of Mr Kidd’s estate, as “Mr Kidd”.
On 11 June 2021 this Court dismissed an appeal by Mr Kidd against the limited release order.[23] While expressing considerable sympathy for the plight of the estate, two fundamental obstacles lay in the path of fuller disbursement of the interim payment sum. First, the amount payable to Mr Kidd remained uncertain. Secondly, the terms of the interim payment order anticipated security given by Mr Kidd against the prospect of an excess interim disbursement when the account was finalised (and the funder, which would take the lion’s share, had given no repayment undertaking).[24]
Interim judgment as to account against Mr van Heeren
[23]CA release of interim payment judgment, above n 3.
[24]At [24] and [28]–[31].
Trial as to account, to define exactly what Mr van Heeren owed Mr Kidd, began in March 2021 and took five weeks in all — including one week pre-trial to take Mr Kidd’s evidence. On 17 June 2021, the High Court delivered an interim substantive judgment in relation to the final account and substantive claim.[25] Jagose J found various assets to be partnership assets as at 18 January 1991. He also found that:
[201] … subject to adjustments for cash and interest, the partnership’s value as a whole at 18 January 1991 is USD 50.895 million, for allocation in equal shares of USD 25.448 million to each Mr Kidd and Mr van Heeren.
[25]Kidd v van Heeren [2021] NZHC 1414 [HC interim substantive judgment].
Interest and costs remain to be determined. Both are likely to be substantial. How substantial the former is depends on whether Mr Kidd’s claim is one for debt and whether the Roman-Dutch in duplum principle applies — limiting interest payable on a debt claim to a sum equivalent to the debt. That is, in effect, at most, doubling the debt. Whether that principle applies here is yet to be determined. We were advised by counsel that if it does, the USD 25.448 million amount provisionally payable to Mr Kidd would double given the antiquity of the underlying account. If interest under the Partnership Law Act 2019 instead applies, interest will be approximately 150 per cent of the principal sum.[26] Plus costs.
[26]Partnership Law Act 2019, s 79(2)(b).
The Judge found Mr Kidd had already received USD 7.836 million, so ordered a disbursement to him of USD 17.612 million from the interim payment “as an advance on a final accounting yet to be concluded”.[27] The Judge also invited Mr Kidd to seek further disbursement, and reserved leave for further adjustment to the partnership cash balance calculation.[28]
[27]HC interim substantive judgment, above n 25, at [203], [240] and [242].
[28]At [130] and [243].
It may be noted that Mr van Heeren has appealed this interim judgment. Before us, Mr O’Brien QC, for Mr van Heeren, suggested challenges to the findings: (1) that an alleged 1991 oral agreement to dissolve the partnership was “inchoate” and insufficiently certain to be enforceable; (2) that Mr Kidd’s claim is a proprietary one; and (3) as to the 1991 value of the partnership assets having especial merit. It is accepted however that it is not for this Court now to pre-empt its decision in that appeal. So we say nothing more about these arguments, neither endorsing nor condemning them.
Funds are released to Mr Kidd’s estate
Mr van Heeren sought stay of these orders on 18 June 2021, one day after judgment. However, as the Judge subsequently recorded:[29]
[5] Unknown to Mr van Heeren at the time of filing and service of his amended stay application, on 25 June 2021, Mr Kidd’s solicitors sought of this Court’s registry transfer of the USD 17.612 million in “non-reversible cleared funds to our trust account”. The request was made by email from a legal secretary in the solicitors’ firm to the registry’s case officer. My judgment was not then sealed. The registry made the transfer on 29 June 2021. On 30 June 2021, Mr Kidd’s solicitors paid out the transferred funds: in settlement of LCM’s claim; in partial settlement of outstanding legal fees in New Zealand and Liechtenstein; and the USD 60,000 balance to Mr Cooper for distribution in the estate.
[29]Kidd v van Heeren [2021] NZHC 2661.
The Judge further recorded that his judgment was in partial determination of Mr Kidd’s substantive claim against Mr van Heeren. It was “not in itself to determine any application by either party in relation to the interim payment”.[30] At the time of judgment, there was no such outstanding application.
Mr van Heeren’s funding application
[30]At [17].
In August 2021 Mr Van Heeren sought orders that legal and expert fees and disbursements totalling NZD 333,401 incurred from 1 April 2021 be paid out of WWL’s funds. The application continued:
To the extent that WWL cannot pay the defendant’s legal fees as sought, payment is sought from the balance of the interim payment sum held in Court. Payment from the interim payment sum is sought on the basis that WWL has previously paid some US$2,510,182.81 of the plaintiff’s legal fees, which absent LCM’s refusal to consent to payment out for the purpose of paying the plaintiff’s litigation costs could and should have been paid from the interim payment sum.
That application lies at the centre of this appeal.
Judgment appealed
In the judgment appealed, delivered on 6 October 2021, the Judge noted an acknowledged increase in the partnership asset value as at 18 January 1991 of USD 436,550. This adjustment increased the value of the partnership assets by USD 0.437 million to USD 51.332 million. Accordingly, the Judge allowed from the interim payment sum a further disbursement to Mr Kidd of USD 218,275.[31]
[31]Judgment appealed, above n 2, at [5] and [7].
That left the balance of the interim payment held by the Court at approximately USD 6.872 million.Taking into account some expert fees, the Judge stated the balance could accommodate both parties’ litigation expenses. Given the result of the interim substantive judgment, the Judge also considered the balance could cover Mr Kidd’s offshore legal expenses in prospective enforcement of final judgment. He concluded the “balance of the interim payment remains an important fund to ensure this proceeding’s conclusion” and that WWL’s funds “need not now be engaged”.[32]
Appeal and cross-appeal
[32]At [11]–[13].
Mr Kidd’s appeal challenges the Judge’s order that Mr van Heeren’s litigation expenses may be paid from the interim payment balance. Mr van Heeren’s cross‑appeal challenged the Judge’s order that Mr Kidd’s litigation expenses be paid from the same source. Although the label “tit-for-tat” was resisted by Mr O’Brien, it is a fair description, apart from one important consideration: Mr Kidd has also received litigation funding of USD 2.51 million from the frozen assets of WWL. We will come back to that.
Appeal
Submissions
For Mr Kidd, Mr Mills QC submits the Judge erred by concluding that the balance of the interim payment remained an important fund to ensure this proceeding’s conclusion. He says this mischaracterised the purpose for which Mr van Heeren was ordered to make the interim payment. It was not to provide a fund from which Mr van Heeren’s legal costs could be met. Rather, it was to ensure Mr Kidd could be confident that USD 25 million would be available to him if his substantive claim was successful. Properly regarded, the interim payment was and continues to be his money and Mr van Heeren should not be allowed to draw from it.
According to Mr Mills, this is not a case where a balancing exercise was appropriate. But if that is incorrect, the Judge erred by not providing adequate reasons, and by not considering the limited and qualified nature of the evidence Mr van Heeren presented to support his claim of impecuniosity and the history of Mr van Heeren’s conduct in this litigation.
For Mr van Heeren, Mr O’Brien submits the interim payment was an express order for payment to be made into Court, not to Mr Kidd. The original orders were qualified in the manner set out at [8] and [9] above. Subsequent decisions, including in this Court, reserved a discretion regarding its release.
Mr O’Brien further submits that even where a plaintiff can show a good arguable proprietary claim over a trust property, the court retains a discretion to allow the defendant to have recourse to those assets to fund his defence. The strength of the plaintiff’s proprietary claim is simply a relevant factor in assessing where the balance of justice lies. The Judge had received evidence and submissions on Mr van Heeren’s impecuniosity at the hearing, which occurred against the background of previous applications by both parties for funding, and which had been allowed by the Court.
Discussion
We treat the appeal before us as one against the exercise of judicial discretion, pursuant to the powers conferred by r 7.71 of the High Court Rules. To be overturned, a discretionary decision must be wrong, fundamentally, in one or more of these four respects: the Judge made an error of law or principle, failed to take into account some relevant matter, took into account an irrelevant matter, or was plainly wrong.[33] If not, the first instance decision should stand and this Court ought not interfere with it. We are however satisfied the requisite judicial error has been demonstrated by Mr Kidd.
[33]Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
First, the interim payment order made by Fogarty J, almost seven years ago, was made under rr 7.69 and 7.71. The effect of those rules is clear on their face: the power to make an interim payment order exists for the protection of the plaintiff. The ordinary effect of such payment is that the plaintiff is entitled to it, subject only to any condition imposed, including as to payment into court under r 7.72(1). Subject to meeting the conditions, it is the plaintiff’s fund.[34] It is no part of the r 7.71 jurisdiction, in our view, to redistribute the interim payment as between the plaintiff (for whose benefit the order is made) and the defendant (for whom it is not). In reasoning otherwise, the Judge fell into an error of principle.
[34]Stringman v McArdle [1994] 1 WLR 1653 (CA); and Campbell v Mylchreest [1999] PIQR Q17 (CA).
Secondly, the interim payment order had been the subject of prior appeal to this Court. That appeal was dismissed.[35] Leave to appeal to the Supreme Court was refused.[36] The present application, the effect of which is to reduce the benefit conferred by the interim payment order, serves as a collateral attack upon those decisions. That relevant consideration appears not to have been recognised hitherto. It is not necessarily a barrier to an application to vary, but is a factor requiring assessment in the round.
[35]CA issue estoppel judgment, above n 14, at [184].
[36]SC leave decision, above n 15.
Thirdly, there is a contextual point that overshadows Mr van Heeren’s funding application — whether made as a variation of the interim payment order or for further disbursement from WWL’s frozen funds. Mr van Heeren’s claim of impecuniosity, if true, means he is good neither for his own legal costs and expenses, nor for payment of the sum he is likely to have to account to Mr Kidd for — a far larger sum. This point has not, in our view, been adequately considered in varying the interim payment order. In our view it reinforces the unsuitability of using the interim sum to meet Mr van Heeren’s costs, even if that were possible in principle. Subject to the next consideration, the only source under the Court’s control from which such costs might properly be met are other assets frozen by court order. That is, the remaining funds held by WWL.
Fourthly, although alleged impecuniosity on Mr van Heeren’s part is the premise for his funding application, we are far from satisfied that the evidence sustains his claim. In our view closer examination of the assertion was required before it could be relied on to justify payment — either from the interim payment (which we hold to be precluded in principle) or from WWL’s frozen funds (which may yet be possible). Of two things here there is no doubt whatsoever: that Mr van Heeren unlawfully diverted partnership property to his own use, and that he reinvested those assets in entities from which, apart from WWL, recovery has proved complex. Of two other matters, there is considerable doubt: whether Mr van Heeren can procure repayment from them, and whether he is in fact insolvent. The former facts compel careful scrutiny of the latter assertions. Mr van Heeren protests his alleged impecuniosity is “unchallenged”, but the absence of cross-examination on his affidavits does not eliminate judicial responsibility to examine such an assertion, in the present circumstances, with an objective but sceptical eye, and to bear in mind submissions made on behalf of Mr Kidd about insufficiently explained inter-entity lending — in particular those concerning unsecured advances of USD 13.82 million made by a Jersey-registered company, Dunsel Investments Ltd (held by the Judge to be a partnership asset)[37] to a second Jersey-registered company called Salisbury Holdings Ltd, and further unsecured and interest-free advances of USD 17.61 million by Salisbury to its subsidiary, Grande Provence Properties (Pty) Ltd. This last company owns the estate in South Africa in which Mr van Heeren resides, albeit denying any personal ownership interest. As observed earlier, these circumstances justify careful scrutiny. They will, no doubt, receive exactly that should Mr van Heeren renew his application for funding from the frozen funds of WWL instead.
[37]HC interim substantive judgment, above n 25, at [171]. Mr Mills suggested a figure closer to USD 19 million. We forebear from resolving this now.
It follows from this that the High Court erred in principle in ordering payment of Mr van Heeren’s costs and expenses out of the interim payment sum. That order must be discharged.
Cross-appeal
We can be brief. We see no error in principle in the High Court permitting litigation funding to Mr Kidd from the interim payment. The precise use made by the plaintiff of the interim payment is of limited concern only to the Court, save in respect of any necessary security for repayment.[38] But Mr van Heeren may not approbate and reprobate: if it was right for him to receive funding from the interim payment sum to meet his litigation expenses, logic suggests it must be right also for Mr Kidd to do so. After all, it is Mr van Heeren’s illegal actions that have caused these costs to be incurred. As it happens, principle compels Mr van Heeren be denied funding from the interim payment, but that does not mean Mr Kidd should be denied.
[38]Stringman v McArdle, above n 34, at 1657 per Stuart-Smith LJ, as cited in Campbell v Mylchreest, above n 34.
Rather, Mr van Heeren should renew his application to the Judge for funding from the frozen funds of WWL. In considering the application, the Judge doubtless will also bear in mind the fact that Mr Kidd has received substantial funding from that source also, although Mr Kidd’s impecuniosity (or that of his estate) appears more clearly established.[39]
[39]See [29] above.
But nothing we have heard suggests the High Court erred in principle in permitting release of litigation funds to Mr Kidd from the balance of the interim payment sum, moneys which in principle are his.
Result
The appeal is allowed.
The order that the respondent’s litigation expenses are to be paid from the balance of the interim payment sum currently held in the High Court is discharged.
The cross-appeal is dismissed.
The respondent must pay the appellant costs for a standard appeal on a band A basis and usual disbursements.
Solicitors:
K3 Legal Ltd, Auckland for Appellant
Fee Langstone, Auckland for Respondent
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