Kuyt v Kuyt

[2018] NZHC 619

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018- 404-541

[2018] NZHC 619

BETWEEN

SOPHIA ANNA KUYT

Applicant

AND

NICO KUYT

Respondent

Hearing:	On the papers
Judgment:	9 April 2018

JUDGMENT OF VAN BOHEMEN J

This judgment was delivered me on 9 April 2018 at 3pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

D Grindle, Whangarei wrmk Lawyers

Counsel:
N Hartwell, Whangarei

KUYT v KUYT [2018] NZHC 619 [9 April 2018]

Introduction

[1]                 Sophia Kuyt and her husband, Nico Kuyt, both of whom reside in Fiji, are in the process of dissolving their marriage and seeking orders to resolve their relationship property issues. Those matters are currently before the Courts in Fiji.

[2]                 Mrs Kuyt has concerns, backed up by some evidence she has obtained, that Mr Kuyt is intending to block Mrs Kuyt from accessing financial assets held in New Zealand. She considers Mr Kuyt may try to conceal or dissipate those assets before their affairs have been resolved. Mrs Kuyt has made an originating application without notice for a freezing order over those assets. She has applied without notice because she considers that serving the application on Mr Kuyt may hasten his efforts to conceal or dissipate those assets.

[3]The grounds of the application are:

(a)Mrs Kuyt has a good arguable case in her substantive claim to the assets in the relationship property proceedings she has brought in Fiji;

(b)The assets are identifiable;

(c)There is a real risk of the assets being dissipated or disposed of.

[4]                 These were the established requirements for the grant of a Mareva injunction1 and continue to apply for the grant of a freezing order under HCR 32.2.

[5]                 Mrs Kuyt has sworn an affidavit, dated 23 March 2018, in support of her application.    Mrs Kuyt’s  counsel, Ms Hartwell, has filed a memorandum dated     29 March 2018 in support of the application.

Brief background

[6]                 According to Mrs Kuyt’s affidavit, Mr and Mrs Kuyt were married in Florida in the United States in September 1997. They moved to Fiji in or around 2009. In

1      Shaw v Narain [1992] 2 NZLR 544 (CA) at 548.

Fiji, they established the Radha Govinda Vedic Charitable Foundation (Foundation) which operates on a large property in Savusavu purchased by Mr and Mrs Kuyt and on which they have also had their family home.

[7]                 Among financial assets held  by  Mr  and  Mrs  Kuyt  are  assets  held  in New Zealand: in a box in the Commonwealth Vault on the corner of Customs and Albert Streets in Auckland and in an ASB Foreign Currency Bank Account.

[8]  In December 2017 after a trip to Singapore, Mr Kuyt informed Mrs Kuyt he wanted a divorce and wanted her and their three children gone from the family home within two months. Mrs Kuyt was able to access Mr Kuyt’s email account and found he had resumed a relationship with a previous girlfriend and was making preparations to bring her to Fiji.

[9]                 Mrs Kuyt also found emails indicating that Mr Kuyt had taken steps to remove Mrs Kuyt’s access to the box in the Commonwealth Vault and to give access to the former girlfriend. Mrs Kuyt believes the box contains US$100,000.00.

[10]             Mrs Kuyt believes the ASB account contains a significant amount of money. Annexed to Mrs Kuyt’s affidavit is an email chain indicating that deposits of US$50,000 and US$40,000 were made into that account between September 2015 and April 2016.

[11]             Whether the account still has significant funds is unclear. Mrs Kuyt acknowledges she has never had access to the account. I note that included in the emails annexed to Mrs Kuyt’s affidavit is an email of 2 August 2016 from the ASB to Mr Kuyt stating that the account had a balance of US$76,980.50. However, further emails in August 2016 indicate that Mr Kuyt withdrew US$70,000 plus NZ$4,000 in cash from the account when he visited Auckland later that month. That said, more recent emails annexed to Mrs Kuyt’s affidavit indicate Mr Kuyt was receiving substantial deposits and making substantial withdrawals from that account in 2017.

[12]             Mr Kuyt has brought proceedings in Fiji to dissolve the marriage and Mrs Kuyt has applied for orders to secure her interests in the Kuyts’ property. She has applied

for 50 per cent of the property held by Mr Kuyt which she says has a value of approximately NZ$750,000. Those two sets of proceedings are before the Fiji Courts. Mrs Kuyt has been advised that it may take up to four months before there can be a hearing. She is hopeful the proceedings will be disposed of within 12 months.

[13]             Mrs Kuyt also applied for and obtained, without notice, an interim injunction restraining Mr Kuyt from dealing with named financial assets, including the Commonwealth Vault box and accounts with the ASB in New Zealand. A copy of the decision dated 14 March 2018 of the Resident Magistrate of the Resident Magistrate’s Court at Savusavu granting the interim injunction is annexed to Mrs Kuyt’s affidavit. In granting the injunction, the Resident Magistrate accepted that Mrs Kuyt had satisfied the threshold required for the grant of a Mareva injunction.

[14]             Mrs Kuyt is concerned that Mr Kuyt will have dissipated or transferred out of Fiji assets to which she is entitled before her relationship property claim has been decided. She has annexed to her affidavit correspondence from Mr Kuyt that indicates he is trying to minimise the value of their joint assets and to assert that Mrs Kuyt has no claim on the Foundation’s assets.

[15]             Despite having obtained the interim injunction in Fiji, Mrs Kuyt is also concerned that Mr Kuyt will try to take steps to dissipate the New Zealand assets and that he would take such steps in that direction if notice of her application for a freezing order was served on him.

[16]             Mrs Kuyt says the New Zealand assets are investments and are not required for Mr Kuyt’s living expenses which, she says, he meets from other bank accounts and cash. Mrs Kuyt gives an undertaking as to damages in the last paragraph of her affidavit.

Discussion

[17]             I am satisfied that Mrs Kuyt has met the requirements for the grant of a freezing order over the assets on a without notice basis.

[18]             Mrs Kuyt has brought a claim to the assets in the relationship property proceeding she has brought in Fiji. Her claim will be determined in that proceeding. Her affidavit establishes she has at least a tenable claim to the assets. That conclusion is supported by the fact she has obtained an interim injunction over the assets in Fiji. The case is clearly arguable.

[19]             In terms of HCR 32.5, Mrs Kuyt has a good arguable case in a cause of action that is justiciable in the Resident Magistrate’s Court in Savusavu, Fiji, and

(a)There is sufficient prospect the Fiji Court will give judgment in favour of Mrs Kuyt;

(b)There is sufficient prospect that judgment will be registered in and enforced by the Fiji Court;

(c)Because the assets are located in Auckland, there is a real connecting link between the assets and the jurisdiction of this Court; and

(d)The freezing order would be consistent with the interim injunction granted by the Resident Magistrate’s Court in Fiji.

[20]             The assets are clearly identifiable: a numbered box in the Commonwealth Vault and a numbered ASB account.

[21]               Mrs Kuyt’s affidavit and the annexed emails show that Mr Kuyt has already taken steps to try to prevent Mrs Kuyt’s access to the assets and is trying to downplay her interest in these and other assets which Mrs Kuyt has claimed. I consider that Mrs Kuyt has established that a prudent person can properly infer from that evidence a danger of dissipation of the assets in New Zealand.

[22]             I also accept that the risk of dissipation or transfer of the assets could increase if Mr Kuyt had notice of Mrs Kuyt’s application before the freezing order is in place.

[23]             While it is somewhat unusual for an undertaking as to damages to be included in an affidavit, the undertaking satisfies the requirement of HCR 32.2(5) of a signed

undertaking that Mrs Kuyt will comply with any order for the payment of damages to compensate Mr Kuyt for any damage sustained in consequence of the freezing order.

Terms of draft order

[24]             The draft order filed with the application complies with Form G 38 as required by HCR 32.6. The date in paragraph 6 will need to be adjusted to 9 April 2019, being the proposed 12 months after the making of the order.

[25]             I also consider that a further paragraph should be included in the Order to refer to Mrs Kuyt’s undertaking as to damages.

Result

[26]             For the above reasons, I make the order set out in the draft order filed with Mrs Kuyt’s application, subject to the following amendments:

(a)The date in paragraph 6 should be changed to 9 April 2019;

(b)A further paragraph should be included, after the current paragraph 8, as follows:

As required by Rule 32.2(5) of the New Zealand High Court Rules, the applicant has provided an undertaking to comply with any order the court may make to compensate you for any damage sustained in consequence of this order.

van Bohemen J