Kidd v Van Heeren - [2020] NZHC 3198

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-725

[2020] NZHC 3198

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN

Defendant

Hearing: 11 November 2020

Appearances:

S J Mills QC and B O’Callahan for the plaintiff

M D O’Brien QC and S D Williams for the defendant
T B Fitzgerald and B J Ward for Worldwide Leisure Limited
J S Cooper QC and A E Murray for LCM Operations Pty Limited

Date of judgment:

4 December 2020

JUDGMENT OF JAGOSE J

[Funds advance: final orders]

This judgment was delivered by me on 4 December 2020 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
B O’Callahan Barrister, Auckland S D Williams Barrister, Auckland
K3 Legal, Auckland (EJH Morrison)
Fee Langstone, Auckland (C R Langstone and JRS Lewis)

KIDD v VAN HEEREN [2020] NZHC 3198 [4 December 2020]

[1] By application dated 21 October 2020, Mr Kidd seeks orders advancing NZD [redacted] from Worldwide Leisure Limited’s bank account to enable him to meet further litigation costs in New Zealand and Liechtenstein.

[2] This judgment embodies my final orders, after consultation with counsel on their form as set out in my 25 November 2020 judgment.1 While this judgment replicates its content, for reasons of its redactions, the prior judgment is suppressed from publication, and may only be inspected with the leave of a Judge of this Court.

Context

[3] After hearing from counsel on 11 November 2020, I reserved my decision, but recorded in a minute:2

I accord [Worldwide Leisure] all necessary status to be heard on and adduce evidence in the present application and to appeal my decision, which will lie in Court briefly to give LCM Operations Pty Ltd opportunity to be heard on any matter as may concern it.

At the close of the hearing, I noted my preliminary view – while recognising both [Worldwide Leisure]’s independent standing and its directors’ views of its prudent liquidity, and the lack of specificity as to what the fund is proposed to finance – it might be appropriate presently to order [Worldwide Leisure]’s payment of Mr Kidd’s certified liability on invoices progressively rendered by forensic accountants Browning and Jordan in connection with this proceeding and other such disbursements. There may be analogy to be drawn from similar litigation funding decisions under the Property (Relationships) Act 1976, which has some resonance in the presumed-equal partnership between Mr Kidd and Mr van Heeren, who also is the sole beneficial owner of [Worldwide Leisure]’s shares. My preliminary view substantially was drawn from the desirability of maintaining this proceeding’s March 2021 trial, which Mr Mills indicated otherwise may be sought to be adjourned until funds alternatively become available from sale of Huka Lodge on account of this Court’s interim order for Mr van Heeren’s payment of USD 25 million.

Recognising the parties had not opportunity to…

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 [2020] NZHC 3198
Case: [2020] NZHC 3198
Decision Date: 4 December 2020

CaseChat Overview and Summary

The case of Kidd v Van Heeren was heard by the High Court of New Zealand in Auckland, with the plaintiff, Michael David Kidd, seeking orders to advance funds from Worldwide Leisure Limited’s bank account to cover his litigation costs. The defendant, Alexander Pieter Van Heeren, who is also the sole beneficial owner of Worldwide Leisure Limited, did not oppose the release of funds but proposed that any expenditure should partially discharge an existing interim payment order and be subject to repayment and security. The court was required to decide whether to order Worldwide Leisure Limited to pay Kidd’s litigation costs in full or in part, taking into account the company’s financial capacity and the need to maintain the scheduled trial.

The court considered the legal principles applicable to its broad powers to make orders in the interests of justice when its orders are not complied with. It also evaluated the advice of Worldwide Leisure Limited’s directors, who believed that the company could not afford to pay more than a specified amount. The court concluded that while it could not disregard the directors' advice, it had the authority to order funding for the litigation to ensure that the trial would not be at risk due to Kidd’s impecuniosity. The court found that the funds should not be used to partially discharge the interim payment order but rather to enforce its full performance.

The court ordered Worldwide Leisure Limited to pay any invoices progressively rendered by forensic accountants Browning and/or Jordan, and any other disbursements (excluding any legal fees), certified by Kidd’s solicitors as due and payable in connection with this proceeding, within 10 working days of their presentation for payment. Worldwide Leisure Limited was granted leave to apply to vary the order in relation to invoices or disbursements certified after 31 January 2021, or on any earlier change of circumstances that adversely affects the directors’ assessments of the company’s ability to pay.

Orders