Kidd v Van Heeren
[2021] NZCA 244
•11 June 2021 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA280/2021 [2021] NZCA 244 |
| BETWEEN | THE ESTATE OF MICHAEL DAVID KIDD by its administrator BRYAN JOHN COOPER |
| AND | ALEXANDER PIETER VAN HEEREN |
| Hearing: | 3 June 2021 |
Court: | Kós P, Gilbert and Courtney JJ |
Counsel: | B O’Callahan for Appellant |
Judgment: | 11 June 2021 at 9 am |
JUDGMENT OF THE COURT
AThe application for leave to adduce further evidence is declined.
BThe appeal is dismissed.
CThere is no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Kós P)
We are here dealing with fraud by one partner against another, compounded by defiance and delay. An interim payment of USD 25 million is ordered to be paid into Court within a month. The respondent delays payment for almost six years. The appellant dies 14 days after payment is made into Court. His estate is now struggling to meet the costs of the litigation. It has a ruinous arrangement with a litigation funder. It asks the Judge to release the USD 25 million so it may get the funder off its back and continue recovery proceedings in Liechtenstein. The Judge declines to do so, because security cannot be given. Was the Judge wrong?
Background
The history of this litigation tells a dispiriting tale. 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. All this was determined conclusively by Satchwell J in the High Court of South Africa in 2013.[1]
[1]Kidd v van Heeren SGHC Johannesburg 27973/1998, 20 May 2013.
In fact, 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.[2] So Mr Kidd commenced proceedings in South Africa in 1998. Fifteen years later, this produced the judgment referred to at [2]. Mr van Heeren had elected not to give evidence in the trial. It may be noted that in the course of that judgment Satchwell J found the deed of indemnity, which had justified the stay, to be procured by fraud and therefore void. 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. Leave to appeal was denied by the Supreme Court of South Africa.[3]
[2]Kidd v van Heeren [1998] 1 NZLR 324 (HC).
[3]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 current 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.[4] As to interim payment, the Judge went on to hold:
[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.
[4]Kidd v van Heeren [2015] NZHC 517 at [117].
The following orders were then made:[5]
(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.
[5]At [170] (footnote omitted).
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 ten months after the judgment.
First 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.[6] Then Mr van Heeren sought stay of judgment. That application too was dismissed.[7] Next, he appealed the issue estoppel finding and the interim payment order to this Court. That appeal was dismissed.[8] Leave to appeal to the Supreme Court was declined on 9 December 2016.[9] Variation, stay and appeal were all unavailing, therefore. The money should have been paid into Court in May 2015.
[6]Kidd v van Heeren [2015] NZHC 2082.
[7]Kidd v van Heeren [2015] NZHC 2475.
[8]Van Heeren v Kidd [2016] NZCA 401, (2017) 3 NZLR 141.
[9]Van Heeren v Kidd [2016] NZSC 163.
In 2017 Mr Kidd applied for an order seeking appointment of receivers to sell the assets of Worldwide Leisure Ltd (WLL), a New Zealand company that owned Huka Lodge — one of the assets Sackwell J had found to have been acquired by Mr van Heeren using partnership assets (and therefore to have become such an asset itself).Orders were made in the High Court later that year appointing receivers to Huka Lodge.[10]
[10]Kidd v van Heeren [2017] NZHC 3199.
On appeal and cross-appeal in 2019 this Court instead appointed receivers to WLL “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”.[11] We set out what this Court said towards the end of its judgment:
[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 Worldwide Leisure 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”. Worldwide Leisure 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.
[11]Kidd v van Heeren [2019] NZCA 275, (2019) 24 PRNZ 596 at [84]. Dolphin Island is a resort in the Fiji Islands.
Ultimately Huka Lodge was sold in February 2021, after lengthy intervening argument between the parties about the initial conditional sale agreement and its adequacy. The USD 25 million sum was then paid into the registry of the High Court at Auckland on 4 February 2021. To say that it was paid under compulsion is understatement. The next step required was a trial as to account, to define exactly what Mr van Heeren owed Mr Kidd. That trial began in March 2021, took five weeks — including one week in December 2020 for the taking of Mr Kidd’s evidence — and concluded at the end of that month.
Application for interim payment out
Fogarty J’s 2015 orders provided for Mr Kidd to submit a plan of investment and use of the sum paid into Court pending completion of the taking of account of the partnership assets. Mr Kidd had not submitted such a plan, the money not being to hand. However, on 2 February 2021 Mr Kidd applied for release of the whole or part of the interim payment. Significantly, the application was premised on difficulties Mr Kidd had got himself into with a litigation funder. The application reads:
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.
We were told that so ruinous is the litigation funding arrangement that just a sum borrowed of USD 4.3 million underlies the USD 17.25 million now owed.
The application advanced a “plan of investment and/or use” of the funds to be paid into Court. In short, the USD 25 million, converting to approximately NZD 35 million, would be applied as follows:
(a)A payment of NZD 23.8 million into Mr Kidd’s solicitor’s trust account to settle a claim from his litigation funders, LCM Operations (Pty) Ltd (LCM) for USD 17,256,091 under the funding agreement, and
(b)The balance of NZD 11.2 million to be paid into the same trust account “to use as Mr Kidd sees fit, including settling outstanding accounts to his legal team and funding further litigation steps”.
On 12 February 2021 Jagose J (who has been supervising this litigation since 2018) ordered a modest release from the payment into Court. He said:[12]
[6] It appears common ground the final accounting will be to Mr Kidd’s favour in a sum of at least several USD million. It is not accepted such will extend to the whole of LCM’s claim. In my preliminary view – 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 may be made in terms to avoid triggering any priority claimed by LCM.
Orders were made for payment of experts’ invoices by WLL.
[12]Kidd v van Heeren HC Auckland CIV-2014-404-725, 12 February 2021.
Mr Kidd died on 18 February 2021.
On 25 February 2021 Jagose J ordered that the expenses of one expert, Mr Jordan, be paid from the funds paid into Court, and that the Registry may also release up to NZD 550,000 from those funds to meet outstanding invoices of other of the plaintiff’s experts. Further, WLL was to pay the outstanding litigation expenses of each of Messrs Kidd and van Heeren in the amounts respectively of NZD 917,000 and NZD 597,000.[13]
[13]Kidd v van Heeren HC Auckland CIV-2014-404-725, 25 February 2021 at [3].
On 28 April 2021 Mr Kidd’s estate renewed application for release of the interim payment sum. This was premised on two considerations:
(a)the level of interest being payable to Mr Kidd’s litigation funder, LCM, which was said now to be reaching the sum of USD 99,554 per week;[14] and
(b)a need to pay security for costs in the sum of CHF 1.2 million (or approximately NZD 1.85 million) in proceedings brought in Liechtenstein against two foundations associated with Mr van Heeren and into whose control it was said partnership assets had been transferred.
The judgment appealed
[14]The exact sum may be in dispute. That figure is LCM’s claim, calculated on an annually compounding basis.
On 12 May 2021 Jagose J declined the application to make further release from the interim payment sum.[15] After referring to his minute of 12 February 2021, and the priority claim that the litigation funder LCM had made for some USD 17.25 million on distribution, the Judge noted “I am given nothing to overcome my earlier reservations about recoverability of that amount, or of expenditure of any balance of the interim payment sum in other jurisdictions, on this renewal of that declined application.”[16]
[15]Kidd v van Heeren HC Auckland CIV-2014-404-725, 12 May 2021.
[16]At [7].
The Judge went on to say:[17]
Having consented to specific payments being made from the interim payment sum to facilitate trial, LCM opposes payments of any further amounts. It is said to have declined to accommodate any deferral of interest’s accrual. Without knowing what those proposals may have been, I may favourably have considered any proposal effectively to avoid interest’s accrual: for example, LCM securely holding its priority amount, on terms irrevocably submitting to any subsequent order for its repayment in whole or in part. But I have not been asked.
Submissions
[17]At [8].
Mr O’Callahan acknowledged that the Judge’s decision involved the exercise of a discretion. However, he submitted that the Judge did not give any or sufficient weight to the long history of Mr van Heeren’s failure to comply with the interim payment order in his attempts to overcome the effects of it, which we have set out at [6] to [10] above. He also submitted the Judge had given narrow or insufficient weight to Mr Kidd’s estate’s current financial circumstances, and the role Mr van Heeren’s default had in bringing about those circumstances. He referred to the six-year delay in making interim payment. By then Mr Kidd had been compelled to obtain litigation funding under a non-recourse loan, on a basis that had assumed the interim payment would be released in whole or part to enable repayment of that loan, but based on a multiple that is now increasing at a rate that had the potential to make any recovery a little more than a repayment to the funders.
Mr O’Callahan also referred to the Liechtenstein proceedings noted at [1]. These were brought against foundations said to be established by or on behalf of Mr van Heeren and into which partnership assets had been conveyed. Mr Kidd’s estate now faces an obligation to pay security for costs in those proceedings which they cannot meet. Because of his financial circumstances, Mr Kidd had been excused from that obligation, but that dispensation itself dispensed on his death. Re‑application had been made, but would be assessed on all resources available to the estate and its beneficiaries. If security was not paid, the Liechtenstein proceedings would be struck out. Because of limitations, they could not be reinstated. It followed that any ability to pursue assets held through Mr van Heeren’s complex structure of companies, trusts and foundations outside New Zealand and Fiji would be lost. Mr O’Callahan submitted that the estate and its beneficiaries are not in a position to make this payment without release in whole or in part of the interim payment sum.
Finally, Mr O’Callahan submitted that the Judge failed to give sufficient weight to the fact that the effect of not releasing the funds to Mr Kidd’s estate would render the interim payment order no relief at all. It would have the effect of perpetuating the injustice to Mr Kidd and now his estate which this Court in its judgment of 2 July 2019 identified in the terms earlier quoted:[18]
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.
[18]Kidd v van Heeren, above n 11, at [74]. See [9] above for the passage in context.
For Mr van Heeren, Mr O’Brien QC submitted that the Judge’s decision was discretionary; the Judge had long been seized of the proceedings and by the time of his decision had conducted the trial as to account. A question as to alleged illegality of the partnership’s operations was said to overlie that trial. Both Messrs Kidd and van Heeren, it was said, had engaged in UN-sanction-breaking trading. But even putting that to one side, the range of figures in the expert evidence before the Judge indicated that there were a range of potential payment outcomes. Mr Kidd’s estate’s entitlement was potentially as low as USD 2.5 million. The Court could no longer be satisfied that Mr Kidd’s estate was likely to obtain judgment for the whole of the interim payment sought. No investment plan was advanced; rather the funds were all to be used and consumed. Were the USD 25 million payment made, but a judgment of say USD 5 million or less delivered, there was no prospect whatsoever of recovering the funds, almost all of which would have gone to the litigation funder, LCM. There was no undertaking for LCM to return the balance.
Mr O’Brien submitted, further, that there was insufficient evidence as to the worth of the estate and its beneficiaries, or what would happen in Liechtenstein. If the state of the estate was as dire as suggested, then there was no reason to believe the Liechtenstein courts would not continue to waive security for costs as they had done when Mr Kidd in his personal capacity had been the plaintiff. At the end of the day, it could not be said that the Judge’s judgment was plainly wrong or that he had overlooked a material consideration.
Discussion
We have a great deal of sympathy for Mr Kidd’s estate. Mr van Heeren had defrauded Mr Kidd over a lengthy period. Then, far from expressing contrition and making amends, he did the opposite. He has wriggled and twisted at every turn to resist liability being sheeted home to him, or in accounting for his wrongdoing. His arguments that he lacked funds were further falsehoods; what he had done was to put his funds, a significant proportion of which had been obtained by his frauds against Mr Kidd, in places from which extraction was difficult. His campaign of resistance, in the face of a conclusive finding of liability, appears to have driven a once wealthy business partner to the economic brink. The interim payment sum ordered to be paid into Court in May 2015 was paid only in early February 2021, almost six years late. There it sat, tantalisingly within reach, for all of the 14 days left before Mr Kidd died.
Now it is said that the underlying trading was illegal. This is advanced as a basis on which the claims, now by Mr Kidd’s estate, should be denied. It remains to be seen what the High Court Judge makes of all this. He may consider it an abuse of process; a collateral attack on the liability judgment sustained by the Supreme Court. Whatever view is taken, it seems to us to risk turning this case into a game of musical chairs, in which the participant with greater stamina not only wins the game but also gets to take home all the chairs.
The predicament Mr Kidd’s estate finds itself in, particularly the extravagant indebtedness to LCM, seems to be a direct product of Mr van Heeren’s default in making payment in May 2015, as he was ordered. No stay of that order was ever
obtained. As events transpired, he simply defied it. For that defiance, there must be serious consequences.[19]
[19]Had just the interest on the USD 25 million payment been released after May 2015, the litigation funder may not have been needed. We were not informed whether further claim may be made against Mr van Heeren for consequential loss. The authorities are unsettled on whether contempt may give rise to a private action for loss: see Chapman v Honig [1963] 2 QB 502 (CA); Acrow (Automation) Ltd v Rex Chainbelt Inc [1971] 1 WLR 1676 (CA); Astro Exito Navegacion SA v Hsu (The Messiniaki Tolmi) [1983] 1 Lloyd’s Rep 666 (QB) at 671; United Telecasters Sydney Ltd v Hardy (1991) 23 NSWLR 323 (CA); and Rajski v Bainton (1990) 22 NSWLR 125 (CA). The issue does not appear to have arisen yet in New Zealand.
We are not however persuaded that the wrong done to Mr Kidd is fixed by perpetrating a second wrong against Mr van Heeren, no matter that it might seem entirely equitable to do so. We make six points.
First, putting aside altogether the illegality argument, it remains entirely possible that the outcome of the account being undertaken by the Judge will be a sum substantially below USD 25 million. A summary of the expert evidence before us suggests a net liability on Mr van Heeren’s part as at 18 January 1991 of between USD 2.6 million to USD 20.7 million. To that must be added interest which, given the passage of time, must at least double that sum. While some parts of Mr van Heeren’s quantum challenges appear far-fetched, the likely final outcome of the trial as to account cannot be stated with confidence on appeal.
Secondly, if funds are disbursed in accordance with the present application, then more than USD 17 million will be consumed by the litigation funder, LCM. Allowing that the judgments of the Supreme Court in Waterhouse v Contractors Bonding Ltd and PricewaterhouseCoopers v Walker are probably not the last word on the matter, it is unclear whether the High Court has any ultimate or effective supervisory jurisdiction over the quantum for which Mr Kidd’s estate is liable to LCM.[20] However, what is clear, as Mr O’Callahan was compelled to acknowledge, is that the prospects of recovery of any surplus over and above the ultimate account paid to LCM is, as he put it, somewhere between “doubtful” and totally “irrecoverable”. No undertaking on behalf of LCM has been tendered to this Court.
[20]See Waterhouse v Contractors Bonding Ltd [2013] NZSC 89, [2014] 1 NZLR 91 at [28] and [48]; and PricewaterhouseCoopers v Walker [2017] NZSC 151, [2018] 1 NZLR 735.
Thirdly, it is in any case tolerably clear that Fogarty J intended there to be security for any payment out of the sum paid into Court, given a possibility that the ultimate account (plus interest) was less than the full amount paid in. That is apparent from the passages we cite at [4] and [5] above. These refer to the need for an investment and use plan (not just the latter). Further, [168] of the judgment refers to the potential liability of Mr Kidd to repay excess if the ultimate account is for a smaller sum. In his subsequent judgment dismissing Mr van Heeren’s application for stay, Fogarty J observed:[21]
… it was an essential characteristic of the orders under [172] that if the interim payment into Court [was] released to the plaintiff, either in whole or in part, it would be on terms approved by the Court, including the investment proposals. To be sure, the Court would no doubt receive an application for partial use of those funds, for example, to meet the order for Court costs, or to be able to expend some money, providing that security can be provided over other fixed assets of Mr Kidd to ensure the ability to repay the same should the defendant be successful on appeal.
[21]Kidd v van Heeren, above n 7, at [33].
Mr O’Callahan urged upon us the more permissive approach taken in the English courts in Schott Kem Ltd v Bentley and Harmon CFEM Façades (UK) Ltd v Corporate Officer of the House of Commons.[22] However, the appellant here seeks to uphold and enforce the orders made by Fogarty J, rather than challenge them. We think they must take the bad with the good, therefore. And for them the bad is the security obligation anticipated by the Judge, which they can no longer meet. The wisdom of that requirement is demonstrated by what has transpired at the trial as to account. In any case, we note that in Schott Kem Ltd Neill LJ observed that interim payments are not suitable where the factual issues are complicated.[23]
[22]Schott Kem Ltd v Bentley [1991] 1 QB 61 (CA); and Harmon CFEM Façades (UK) Ltd v Corporate Officer of the House of Commons [2000] All ER (D) 1046 (QB).
[23]Schott Kem Ltd v Bentley, above n 22, at 73.
Fourthly, the position in relation to the Liechtenstein proceedings is concerning. But there are two fundamental problems lying in Mr Kidd’s estate’s way. The first is that, as they are also compelled to acknowledge, any funding for the Liechtenstein proceedings stands second to LCM’s claims. No proposal to enable the discrete funding of that proceeding without payment to LCM was advanced. The second problem is that there is simply insufficient information available to the Court to assess whether release of funds, let alone funds in excess of USD 17 million, is necessary to keep alive these proceedings. Mr O’Callahan sought that we have regard to unsworn statements of assets produced by members of the Kidd family in support of an application for legal aid approval in Liechtenstein. Because it is unsworn, and inconclusive, we decline to receive it. Moreover, we have no evidence from local counsel as to the likely way ahead in those proceedings, and specifically whether security for costs will be required in this context (when it was not of Mr Kidd) and the effective date by which that is likely to be determined. Suffice to say we are not satisfied that that date is 9 June 2021 on the evidence before us.
Fifthly, and relatedly, we have made enquiries of Jagose J as to the likely timing of judgment. The Judge has advised that his judgment is complete, in draft, and is likely to be released later next week. Even if matters were in the balance, which by this point they are not, this suggests payment out now of an unsecured USD 25 million sum now would be premature.
Finally, as Mr O’Callahan was also compelled to acknowledge, the Judge’s decision in this matter was the exercise of a judicial discretion. That means the principles in May v May apply.[24] Some degree of appellate deference is appropriate: the Judge must have (1) made an error of law or principle; (2) failed to take into account some relevant matter; (3) taken into account an irrelevant matter; or (4) otherwise been “plainly wrong”. Having regard to the points above, we are compelled to conclude that this standard for review and reversal is not met. The appeal will, therefore, be dismissed.
Costs
[24]May v May (1982) 1 NZFLR 165 (CA) at 169–170, approved in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32].
Ordinarily Mr van Heeren would be entitled to costs. In the circumstances of this appeal, given his prior non-compliance with orders of the Court, we do not consider that an appropriate course. There will be no order for costs.
That is not to be taken as any criticism of Mr van Heeren’s counsel in this appeal.
Result
The application for leave to adduce further evidence is declined.
The appeal is dismissed.
There is no order for costs.
Solicitors:
K3 Legal Ltd, Auckland for Appellant
Fee Langstone, Auckland for Respondent
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