—1.02: Salaries – other South African companies (directors’ emoluments) [93] —1.03: Salaries – WWL (directors’ fees) [98] —2.01: Dividends from Tisco from 1976 to 1991 inclusive [102] —3.01: Interest on shareholder loan balance with Tisco [104] —4.01: Drawings – funds received by van Heeren from Genan [108]
—4.05: Drawings – funds paid to Credit Suisse accounts [118] —4.06: Drawings – net sales value of St Heliers property [119]
—5.01: Partnership assets – cash [127]
… 5.1.1 and 5.1.5: DEM 6 million deposit with BNZ Singapore [131] … 5.1.2 and 5.1.18: balance of Wellesley share sale proceeds [132] … 5.1.6 and 5.1.22: funds held in Europe [137]
—5.14: Partnership assets – gold bullion and accounts [186]
—5.15: Other gold [188] —5.16: Prime NZ assets [189] —5.17: Berrax NV [191] —6.01: TAS shipment [192] —6.02: Tisco [196] —7.01: Drawings to be added back [197] —7.02: Retentions to be deducted [202] —interest [204]
The account at the date of final judgment [206]
—8.01: Value of Mr van Heeren’s property and assets [211]
—9.01: Huka Trust [214] —9.02: WWL preference shares [215] —9.03: St Heliers property proceeds [216] —9.04: Brasschaat property proceeds [217] —10.01: Adjustment for Huka Trust related party loans [218]
—10.02: “Unaccounted” cash [219]
—10.03: Adjusted value…
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.
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Details
AGLC
Kidd v van Heeren [2021] NZHC 1414
Case
[2021] NZHC 1414
Decision Date
CaseChat Overview and Summary
This case involves a legal dispute between the Estate of Michael David Kidd, represented by Bryan John Cooper, and Alexander Pieter van Heeren. The case pertains to the accounting of a partnership between the two individuals, which primarily involved international steel trading and investment of trading surpluses in various offshore entities. The dispute arose from the cessation of their joint business in the early 1990s, following the settlement of South African entities to Mr Kidd. The High Court of New Zealand, Auckland Registry, presided over the case, with Justice Jagose delivering the interim judgment on 17 June 2021. The primary legal issues in the case involved the proper law of the partnership, the dissolution of the partnership, and the nature of Mr Kidd's claim regarding the partnership assets. The court found that the proper law of the partnership was South African law, and the partnership was dissolved by the cessation of their joint business on or about 18 January 1991. Mr Kidd's claim was characterised as that of a co-owner of the partnership assets. The court's reasoning and outcome were based on the evidence provided by expert forensic accountants, who prepared a joint witness statement identifying areas of agreement and disagreement. The court also considered the implications of the South African judgment, which found the men to be in partnership and established the partnership's acquisition of worldwide assets. The final orders of the court are yet to be determined, as further evidence will be necessary to bring the accounting up to date.