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Kidd v van Heeren

Kidd v van Heeren

Case [2021] NZHC 2661 6 October 2021

Civil Litigation & Procedure

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA

TĀMAKI MAKAURAU ROHE

CIV-2014-404-725

[2021] NZHC 2661

BETWEEN
THE ESTATE OF MICHAEL DAVID KIDD

by its administrator BRYAN JOHN COOPER

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN

Defendant

Hearing: 9 and 10 September 2021

Appearances:

B O’Callahan and EJH Morrison for the plaintiff

M D O’Brien QC and S D Williams for the defendant R C Knight for Ms van Heeren-Hermans

J G Miles QC and A E Murray for LCM Operations Pty Ltd A R Galbraith QC and M C Harris for S J Mills QC

Judgment:

6 October 2021

INTERIM JUDGMENT OF JAGOSE J

[Relief from partial disbursement of interim payment]

This judgment was delivered by me on 6 October 2021 at 4.00pm.
Pursuant to Rule 11.5 of the High Court Rules.

………………………… Registrar/Deputy Registrar

Counsel/Solicitors:
S J Mills QC, Auckland
M D O’Brien QC, Auckland J G Miles QC, Auckland
A R Galbraith QC, Auckland
B O’Callahan Barrister, Auckland S D Williams Barrister, Auckland R C Knight Barrister, Auckland K3 Legal Limited, Auckland
Fee Langstone, Auckland Bell Gully, Auckland DLA Piper, Auckland Gilbert Walker, Auckland

THE ESTATE OF MICHAEL DAVID KIDD by its administrator BRYAN JOHN COOPER v VAN HEEREN [2021] NZHC 2661 [6 October 2021]

[1] This judgment partially determines the defendant’s (“Mr van Heeren”) interlocutory application for relief from disbursement to the plaintiff (for convenience, “Mr Kidd”, although in fact his estate by its administrator, Bryan Cooper) of USD 17.612 million from the USD 25 million interim payment paid into Court on Mr van Heeren’s account.

Background

[2]My interim judgment of 17 June 2021 found:1

… 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.

Noting Mr Kidd already to have the benefit of USD 7.836 million, “I would allow disbursement to him now on that account of USD 17.612 million from the USD 25 million interim payment”,2 the latter being a sum paid into Court on Mr van Heeren’s account,3 and I ordered accordingly “as an advance on a final accounting yet to be concluded”.4

[3] Mr Kidd’s litigation funder, LCM Operations Pty Limited (“LCM”), claimed an entitlement to recover some USD 17.256 million in priority on any distribution from the interim payment, plus interest on the borrowing at the rate of 30 per cent per annum (compounding annually) from 14 May 2021.5

[4] On 18 June 2021, Mr van Heeren sought stay of my order pending determination of his then-contemplated appeal, amended on 2 July 2021 pending determination of his then-intended appeal. Stay was sought in the alternative to disbursement being subject to a condition for LCM’s undertaking and security to repay in the event (and to the extent) of Mr van Heeren’s successful appeal.

[5] Unknown to Mr van Heeren at the time of filing and service of his…

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 [2021] NZHC 2661
Case: [2021] NZHC 2661
Decision Date: 6 October 2021

CaseChat Overview and Summary

The High Court of New Zealand considered an interlocutory application in the case of Kidd v van Heeren. The central dispute involved the disbursement of USD 17.612 million from an interim payment held by the court. The court needed to decide whether the plaintiff, represented by his estate's administrator, was entitled to relief from the disbursement and if there were any breaches in procedural rules regarding communications with the court.

The court examined the procedural requirements for making interim payments and the rules governing the sealing of judgments. It found that the plaintiff's request for disbursement from the interim payment constituted a step on the judgment and required leave before the judgment was sealed. Additionally, the court found that the plaintiff was not entitled to communicate with the registry regarding the disbursement without alerting the defendant, in line with the common law principle that parties to litigation must not communicate with the court without notifying the other parties.

The court granted the defendant relief on his application, finding that the plaintiff's actions were procedurally improper. The court also noted that the relief sought against the plaintiff's litigation funder would be contingent on the defendant establishing his entitlement to the general interlocutory relief he sought. The court directed a one-day hearing to address the remaining issues and reserved costs until the final determination of the application.

Orders