Kidd v Van Heeren - [2019] NZCA 352

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA68/2018
[2019] NZCA 352

BETWEEN	MICHAEL DAVID KIDD Appellant
AND	ALEXANDER PIETER VAN HEEREN First Respondent
AND	WORLDWIDE LEISURE LIMITED Second Respondent
AND	SARACENO HOLDING BV Third Respondent
AND	STICHTING ADMINISTRATIEKANTOOR SARACENO HOLDING Fourth Respondent
AND	BANK OF NEW ZEALAND Fifth Respondent

Court:	French, Brown and Gilbert JJ
Counsel:	S J Mills QC and B O’Callahan for Appellant M D O’Brien QC and S D Williams for First Respondent T B Fitzgerald and B J Ward for Second Respondent No appearance for Third to Fifth Respondents
Judgment: (On the papers)	1 August 2019 at 10 am

JUDGMENT OF THE COURT

AThe application by the first and second respondents to vary or stay the Court’s judgment delivered on 2 July 2019 is declined.
BThe first and second respondents must pay costs on the application as for a complex appeal on a band B basis and any usual disbursements.
CWe make further orders in terms of schedule 1 of the joint memorandum of counsel for the first and second respondents dated 23 July 2019 as modified in terms of this judgment.
DTo align with the 30-day period in our principal judgment, this judgment will be delivered in the first instance only to the parties, the receivers and counsel. The judgment is not to be published further until tomorrow, 2 August 2019.

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REASONS OF THE COURT

(Given by Gilbert J)

In our judgment delivered on 2 July 2019 we made an order appointing receivers of the shares of Worldwide Leisure Ltd for the purpose of realising as soon as reasonably practicable sufficient of that company’s assets found to be partnership assets, being Huka Lodge and (if necessary) Dolphin Island, to enable USD25 million to be paid into the High Court on account of Mr van Heeren’s obligations under an interim payment order made by Fogarty J on 14 June 2015.[1] At the request of all parties, this judgment was released in the first instance only to the parties, the receivers and counsel and was to lie in Court and not become operative for a period of 30 days following delivery. This was to facilitate the prospect of resolution without the need for receivers to be appointed. We also directed the parties to file memoranda setting out the precise terms of the orders needed to give effect to the judgment.
[1]Kidd v van Heeren [2019] NZCA 275.
We have now received memoranda setting out the parties’ respective positions on the form of the orders that should be made. While there is substantial agreement, there are four points of disagreement. We resolve those in this judgment.
On 29 July 2019, Mr van Heeren and Worldwide Leisure Ltd applied for an order extending the 30-day period to 90 days. Alternatively, they sought an order staying the appointment of receivers and extending the non-publication restriction until further order of the Court. Mr Kidd opposes this application. We deal with…

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 [2019] NZCA 352
Case: [2019] NZCA 352
Decision Date: 1 August 2019 at 10 am

CaseChat Overview and Summary

This appeal involves Michael David Kidd, who is seeking to enforce a judgment against Alexander Pieter van Heeren, Worldwide Leisure Limited, and others. The dispute centres on the appointment of receivers over the shares of Worldwide Leisure Limited to realise assets to satisfy an interim payment order. The Court of Appeal was tasked with determining whether to extend the 30-day period for the appointment of receivers and whether to stay the publication of the judgment. The Court also needed to resolve disagreements on the terms of the orders to be made.

The Court of Appeal held that it was not appropriate to extend the 30-day period for the appointment of receivers, given the history of the dispute and the lack of certainty that an extension would lead to resolution. The Court also ruled that the principles of open justice required the judgment to be published without further delay. The Court resolved disagreements on the terms of the orders by rejecting proposed qualifications to the powers of the receivers and the board of Worldwide Leisure, and by limiting the scope of the receivers' costs. The Court declined to consider an application for a stay pending an appeal to the Supreme Court, as it had not been formally made and the appellant had not had an opportunity to respond.

The Court of Appeal declined the application to vary or stay the judgment and ordered the first and second respondents to pay costs. The Court also made further orders in line with a joint memorandum of counsel, with modifications as per the judgment. The judgment was initially delivered only to the parties, receivers, and counsel, and was not to be published further until 2 August 2019.

Orders