Madsen-Ries v Thompson - [2012] NZHC 1260

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-007159 [2012] NZHC 1260

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

ANDJOLYON BRENDAN GEORDIE THOMPSON
First Defendant

ANDPHILIP IAN D'ATH Second Defendant

Hearing: on the papers

Counsel: NH Malarao and WN Fotherby for Plaintiffs
LFA Yaqub for First Defendant

Judgment: 6 June 2012

JUDGMENT (No 3) OF ASHER J

This judgment was delivered by me on Wednesday, 6 June 2012 at 4.30-pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:
Meredith Connell, DX CP24063, Auckland 1140. Email: nick.malarao@meredithconnell.co.nz
Law & Associates, PO Box 76124, Manukau City. Email: lyndal@lawassociates.co.nz

Copy to:
JBG Thompson, 194 Lake Road, Northcote, Auckland 0627.

MADSEN-RIES V THOMPSON HC AK CIV-2010-404-007159 [6 June 2012]

Introduction

[1] The plaintiffs in this case, Vivien Madsen-Ries and David Vance, are liquidators of a company Kiwi House Ltd. They seek judgment against Jolyon Thompson, the first defendant, by way of formal proof.

[2] The case now has something of a history, and I have already issued three judgments or rulings. In the first I declined to enter judgment by way of formal proof, in the second I recalled that judgment, and in the third I declined the first defendant leave to file a further affidavit.

[3] In this decision I draw on parts of my earlier decisions, in particular my recalled judgment of 22 February 2012.

Background

[4] The proceedings concern a residential property at 194 Lake Road, Northcote, Auckland (“the property”). It is presently registered in the name of the first defendant Jolyon Brendan Geordie Thompson, and the second defendant Philip Ian D’Ath.

[5] The property was transferred into the name of the defendants on 19 June

2008 by Kiwi House Ltd (in liquidation) (“Kiwi House”).

[6] The plaintiffs Vivien Madsen-Ries and David Vance are the liquidators of Kiwi House. They have issued these proceedings claiming that the transfer into the names of Messrs Thompson and D’Ath ought to be set aside under Part 6, Subpart 6, of the Property Law Act 2007. They claim that the company was insolvent at the time of the making of the disposition and that the disposition was made without reasonable exchange in value.

[7] The first cause of action seeks an order under s 348 of the Property Law Act vesting the property in the company. The other causes of action were not pursued as Mr Thompson is bankrupt.

[8] The plaintiffs’ claim against Mr D’Ath has been settled and Mr D’Ath has signed a transfer of the property back to the plaintiffs. This proceeding therefore only concerns the claim against Mr Thompson.

[9] Mr Thompson, although he has not filed a statement of defence, argues that he was not served and that he has a good defence to the claim.

Approach

[10] Under r 15.12 the Court has a discretion as to whether 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 Madsen-Ries v Thompson

Details

AGLC: Madsen-Ries v Thompson [2012] NZHC 1260
Case: [2012] NZHC 1260
Decision Date: 6 June 2012

CaseChat Overview and Summary

The High Court of New Zealand heard a case concerning a dispute over the ownership of a residential property at 194 Lake Road, Northcote, Auckland. The plaintiffs, Vivien Madsen-Ries and David Vance, as liquidators of Kiwi House Ltd, sought judgment against Jolyon Thompson, the first defendant, by way of formal proof. The case involved the transfer of the property into the names of Jolyon Thompson and Philip Ian D’Ath, and the plaintiffs claimed that the transfer should be set aside under the Property Law Act 2007. The primary legal issues were whether Kiwi House was a debtor subject to s 346(2) and whether the transfer was made without receiving reasonably equivalent value in exchange. The court found that Kiwi House was indeed insolvent at the time of the transfer and that the transfer was made without receiving reasonably equivalent value in exchange. The court rejected Jolyon Thompson's defences, stating that they lacked credibility and supporting evidence. The court concluded that the transfer was made without any reasonable exchange in value and entered judgment in favour of the plaintiffs, vesting the property in Kiwi House Ltd (in liquidation). The plaintiffs were also awarded costs against Jolyon Thompson on a 2B basis, together with disbursements to be approved by the Registrar.

Orders