Hearing: 9 - 13 February 2015

Counsel:

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

Judgment:

14 April 2015

JUDGMENT OF FOGARTY J

This judgment was delivered by me on 14 April 2015 at 3.00 p.m., 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 517 [14 April 2015]

TABLE OF CONTENTS

Introduction [1] The issues between the parties [14] Res judicata [17] What did the Judge decide? [55]
The indemnity [60] The Genan agreement [84] Mr Kidd’s trust in Mr van Heeren [96]

The content of the partnership [100] Evaluation of the merits on a finding of issue estoppel [110] Summary of issue estoppel analysis [117] Remedy of account [118] Interim payment [127] Opposition to interim payment on the facts [134]
The continuing and outstanding duty of Mr van Heeren to Mr Kidd[146] Residual discretion [157] Judgment [171] Costs [174]

Introduction

[1] This litigation commenced by statement of claim filed in New Zealand in

February 1996.1 The claim pleaded that:2

All the properties and companies and share investments referred to were part of the worldwide 50/50 partnership between the Plaintiff and the Defendant.

The claim sought various remedies, including the taking of accounts. The defendant did not file a statement of defence. Rather, he filed an appearance under protest to jurisdiction. He also applied to have the proceedings struck out or permanently stayed by relying on an indemnity, dated 18 January 1991. He contended the indemnity constituted a complete defence as it provided for a full and final settlement of all matters between the parties.

[2] The New Zealand proceedings were stayed. The order made is as follows:3

There will be a stay of this action until further order of the Court, or until it is established either that the South African Courts decline jurisdiction to declare the validity and scope of the indemnity signed at Randburg on
18 January 1991 (Exhibit E of van Heeren’s affidavit of 8 October 1996), or otherwise uphold the plaintiff’s challenge to it. Leave is reserved to either
party to apply on 21 days’ notice.

[3] On 21 May 2013, Satchwell J, sitting in the South Gauteng High Court of South Africa, declared the indemnity is void and of no force and effect. She did so having concluded “that there were misrepresentations which were deliberately made” (by the defendant) to the plaintiff in order to get him to sign it.4

[4] This is an interlocutory application by the defendant seeking four orders in the following terms:

1      These proceedings have been given a new file number, but remain the same proceedings commenced in 1996, CP46/96.
2      Statement of claim, dated 20 February 1996 at [1.39].
3      Kidd v…

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 517
Case: [2015] NZHC 517
Decision Date: 14 April 2015

CaseChat Overview and Summary

This case involved an interlocutory application brought by Michael David Kidd (the plaintiff) against Alexander Pieter van Heeren (the defendant) in the High Court of New Zealand. The plaintiff sought various orders, including an account of the assets and profits of a partnership between the parties, an interim payment of USD25 million, and a declaration that the defendant was issue estopped from denying the existence of the partnership and the accumulated worldwide assets of the partnership. The defendant opposed the application on several grounds, including the lack of an issue estoppel and the absence of a preliminary question to be determined before taking an account.

The court found that the South African judgment, which declared the partnership and the accumulated worldwide assets of the partnership, created an issue estoppel that prevented the defendant from denying these facts in the New Zealand proceedings. The court also found that the defendant was the principal accounting party and was required to account to the plaintiff for all assets of the partnership, not confined to the list in the South African judgment. Additionally, the court granted the plaintiff's request for an interim payment of USD25 million, subject to the plaintiff submitting a plan of investment and use of the interim payment pending completion of the final accounts.

In summary, the court granted the plaintiff's application for an account, an interim payment, and a declaration of issue estoppel, while reserving the determination of costs for a later date. The defendant was ordered to pay the plaintiff's costs of the application.

Orders