Kidd v Van Heeren - [2020] NZHC 2311

ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER

PUBLICLY AVAILABLE DATABASE UNTIL HEARING OF SUBSTANTIVE PROCEEDING. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2014-404-000725

[2020] NZHC 2311

BETWEEN
MICHAEL DAVID KIDD

Plaintiff

AND

ALEXANDER PIETER VAN HEEREN

Defendant

Hearing: 17 June and 16 July 2020

Appearances:

S Mills QC & B O’Callahan for the Plaintiff

M D O’Brien QC & S D Williams for the Defendant

Judgment:

4 September 2020

JUDGMENT OF BOHEMEN J

[Privilege Issues]

This judgment was delivered by me on 4 September 2020 at 4.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors:
K 3 Legal Limited
Fee Langstone, Auckland Chapman Tripp, Auckland

Counsel:
S Mills, QC, Auckland
M D O’Brien QC, Auckland Ross Knight, Barrister, Auckland

KIDD v VAN HEEREN [2020] NZHC 2311 [4 September 2020]

Introduction

[1] This proceeding has a long history in the courts of South Africa and New Zealand. It concerns a dispute between the plaintiff, Michael Kidd, and the defendant, Alexander van Heeren, over the division of the assets of a partnership. The origins of the dispute go back nearly 30 years.

[2] After obtaining judgment against Mr van Heeren in South Africa,1 Mr Kidd applied in New Zealand for an accounting for his share of the partnership assets, based on the South African decision. In April 2015, Fogarty J directed that there be an accounting to determine Mr Kidd’s entitlement to the partnership assets and ordered Mr van Heeren, within one month of the date of the judgment, to pay USD 25 million into this Court, to file a complete list of all assets of the partnership and to disclose his knowledge of partnership assets that had been disposed of and were no longer under his control.2

[3] The accounting ordered by Fogarty J is finally to take place next year before Jagose J, who has been assigned to the proceeding.

[4] A major cause of the delay since Fogarty J’s decision in April 2015 was that, for a number of years, Mr van Heeren told this Court he could not comply with its orders because his assets were in trusts in Liechtenstein over which he had no control because he was only a beneficiary of the trusts. In September 2017, however, Mr van Heeren told the Court he had become aware he was the founder of at least one of the trusts and had effective control of that trust through his position as founder and through a mandate letter requiring a director of the trust to act on his instructions.

[5] Mr van Heeren has now provided information to the Court for the accounting. He has not paid the USD 25 million into Court as ordered by Fogarty J.

[6] Johanna Marie van Heeren-Hermans, Mr van Heeren’s former wife, who is also a beneficiary of…

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 2311
Case: [2020] NZHC 2311
Decision Date: 4 September 2020

CaseChat Overview and Summary

Kidd v Van Heeren is a case that has long been contested in the courts of South Africa and New Zealand. The dispute between Michael Kidd and Alexander van Heeren concerns the division of the assets of their partnership. The matter has a complex history, involving numerous hearings and orders from various courts. The core issue in this case was the claim to privilege over certain documents. The plaintiff, Michael Kidd, had obtained copies of correspondence and records from a criminal investigation in Liechtenstein into van Heeren and others, which he filed as evidence. Van Heeren argued that the documents were privileged, and Kidd's lawyers should have realised this and consulted with van Heeren's solicitors before filing them in the New Zealand Court. The judge reviewed the documents to determine whether they were privileged and relevant to the proceedings. The judge found that while some of the documents were privileged, van Heeren had waived his privilege by disclosing other communications related to the same issues. The judge ordered van Heeren to disclose certain documents and dismissed the claim to privilege in others. The judge also made an order prohibiting the publication of the reasons for judgment until the substantive hearing, to protect van Heeren's credibility.

Orders