Madsen-Ries v Thompson - [2015] NZHC 3270

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-007159 [2015] NZHC 3270

UNDER
the Property Law Act 2007 and the

Companies Act 1993

IN THE MATTER

of the liquidation of Kiwi House Limited
(in liquidation)

BETWEEN

VIVIEN JUDITH MADSEN-RIES AND DAVID STUART VANCE

Plaintiffs

AND

JOLYON BRENDAN GEORDIE THOMPSON

First Defendant

PHILIP IAN D'ATH Second Defendant

Hearing: 1 December 2015

Counsel:

NH Malarao and S Shin for Plaintiffs
DG Hurd for Defendants

Judgment:

17 December 2015

JUDGMENT OF ASHER J

This judgment was delivered by me on Thursday, 17 December 2015 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell, Auckland.
Brett Norris Law, Auckland. DG Hurd, Auckland.

MADSEN-RIES v THOMPSON [2015] NZHC 3270 [17 December 2015]

Introduction

[1] This is an application to set aside a formal proof judgment I delivered on

6 June 2012.1 In that judgment, I found that a property transferred from Kiwi House Ltd (in liquidation) (Kiwi House) to the defendants was a disposition to which s 346 of the Property Law Act 2007 (the Act) applied. I ordered that the property be vested back into the name of Kiwi House.

[2] The first defendant, Mr Jolyon Thompson, applies in his own capacity and as a trustee of the Swamp Lake Trust (the Trust) to set aside that judgment. The second defendant Mr Philip D’Ath was also a trustee, but has since been replaced by BAN Trust Co Ltd, which supports Mr Thompson in the application. Relying on further affidavit evidence and additional argument, the defendants say the judgment should be set aside. The liquidators of Kiwi House, the plaintiffs Vivien Madsen-Ries and David Vance, oppose the application. They say that the proposed defence has no merit, and the judgment should stand.

Background

[3] The property concerned is a residential property at 194 Lake Road, Northcote, Auckland. Before its transfer to Mr Thompson and Mr D’Ath as trustees of the Trust on 19 June 2008, the property was owned by Kiwi House. Mr Thompson lives at the property and has previously owned the property in his personal capacity.

[4] Kiwi House was put into liquidation on 6 March 2009. The liquidators filed their application to set aside the disposition of property as prejudicial to creditors on
1 November 2010. The first defendant took no steps in the proceeding and the liquidators sought formal proof. Since then, the proceeding has had an unusual history.

[5] On 22 February 2012, I declined to enter judgment by way of formal proof. Mr Thompson had appeared represented by counsel when the formal proof
application was called in the Duty Judge list on 24 November 2011. After

1 Madsen-Ries v Thompson [2012] NZHC 1260.

considering the affidavit evidence and submissions I concluded that it had not been proved that he had been adequately served.2

[6] On 24 February 2012, I recalled that judgment.3 It turned out that there had been an affidavit filed relevant to the question of proof 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 Madsen-Ries v Thompson

Details

AGLC: Madsen-Ries v Thompson [2015] NZHC 3270
Case: [2015] NZHC 3270
Decision Date: 17 December 2015

CaseChat Overview and Summary

This case involves an application by Mr Jolyon Thompson, a defendant, to set aside a formal proof judgment delivered by the court on 6 June 2012. The plaintiffs, Vivien Judith Madsen-Ries and David Stuart Vance, are the liquidators of Kiwi House Ltd (in liquidation), a company that was put into liquidation on 6 March 2009. Mr Thompson, in his personal capacity and as a trustee of the Swamp Lake Trust, seeks to set aside the judgment ordering the vesting of a residential property at 194 Lake Road, Northcote, Auckland, back into Kiwi House. The primary legal issues before the court include whether there is a substantial ground of defence to the liquidator's claim and whether there has been a miscarriage of justice if the judgment is not set aside. The court examines the background of the property transfers, the validity of the 2005 and 2008 transfers, and the intent behind the 2008 transfer. After considering the additional evidence and arguments presented, the court concludes that Mr Thompson has not provided a substantial ground of defence and that there is no miscarriage of justice. The application to set aside the judgment is dismissed, and the plaintiffs are awarded costs and disbursements.

Orders