Legal Research
Cases
Kidd v Van Heeren

Kidd v Van Heeren

Case [2022] NZCA 117 7 April 2022

Civil Litigation & Procedure

Type to search within this case.

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 Appellant
AND	ALEXANDER PIETER VAN HEEREN Respondent

Hearing:	8 February 2022
Court:	Kós P, Clifford and Gilbert JJ
Counsel:	S J Mills QC and B O’Callahan for Appellant M D O’Brien QC and S D Williams for Respondent
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…

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 [2022] NZCA 117
Case: [2022] NZCA 117
Decision Date: 7 April 2022 at 9 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand recently heard an appeal and cross-appeal in the long-running litigation between the estate of Michael David Kidd, represented by Bryan John Cooper, and Alexander Pieter van Heeren. This case concerns assets formerly held in a steel-trading partnership dissolved in 1991. The dispute focuses on the misappropriation of a substantial proportion of the partnership assets by van Heeren, which amounted to approximately USD 50.895 million in 1991 terms. The case has spanned multiple countries and jurisdictions, including New Zealand, South Africa, and Liechtenstein.

The primary legal issue in this case revolves around the orders made by the High Court regarding the payment of litigation expenses from the interim payment sum currently held in the Court. Kidd's appeal challenges the Judge's order that van Heeren's litigation expenses may be paid from the interim payment balance. Van Heeren's cross-appeal, on the other hand, contests the Judge's order that Kidd's litigation expenses be paid from the same source.

The Court of Appeal found that the High Court erred in principle by ordering payment of van Heeren's costs and expenses from the interim payment sum. The Court held that the interim payment was intended for the protection of Kidd, and its redistribution as between the plaintiff and the defendant was not within the jurisdiction of the Court. Moreover, the Court found that van Heeren's claim of impecuniosity was not adequately substantiated, and that the evidence presented did not justify the payment of his litigation expenses from the interim payment sum.

As for the cross-appeal, the Court found no error in principle in permitting the release of litigation funds to Kidd from the balance of the interim payment sum, as the funds in principle belonged to Kidd. The Court emphasised that van Heeren should renew his application to the Judge for funding from the frozen funds of Worldwide Leisure Ltd (WWL) instead.

In conclusion, the Court of Appeal allowed Kidd's appeal and discharged the order that van Heeren's litigation expenses be paid from the interim payment balance. The Court dismissed van Heeren's cross-appeal and ordered van Heeren to pay Kidd's costs for a standard appeal on a band A basis and usual disbursements.

Orders