Mink Pink Fashion Group Pty Limited v Gera
[2025] NZHC 2126
•31 July 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2025-404-1958
[2025] NZHC 2126
IN THE MATTER OF A personal guarantee BETWEEN
MINK PINK FASHION GROUP PTY LIMITED
Applicant
AND
REBECCA ROSEMAREE GERA
Respondent
Hearing: On the papers Counsel:
M S P Pang for Applicant
Judgment:
31 July 2025
JUDGMENT OF O’GORMAN J
[Without notice originating application for interim freezing order/injunction]
This judgment was delivered by me on 31 July 2025 at 4 pm pursuant to r 11.5 of the High Court Rules 2016.
Registrar/Deputy Registrar
…………………………………
Solicitors:
Integritas Law, Auckland
MINK PINK FASHION GROUP PTY LTD v GERA [2025] NZHC 2126 [31 July 2025]
Introduction
[1] This is an urgent application by Mink Pink Fashion Group Pty Ltd for interim relief in the form of a freezing order or, in the alternative, an interim injunction, against Rebecca Rosemaree Gera.
[2] The application is made without notice, seeking to restrain the respondent from removing, disposing of, dealing with, or otherwise diminishing the value of her interest in the property at 2/9 Tainui Street, Torbay, Auckland, pending further order of the Court.
[3] The urgency arises due to an auction of the property scheduled for 31 July 2025, and the risk that the proceeds of sale may be dissipated before the applicant can enforce its rights under a personal guarantee given by the respondent in respect of substantial debts owed by Fresh Agency Ltd (in liquidation), of which the respondent was the sole director and shareholder.
Factual Background
[4] The applicant is an Australian-based wholesaler of fashion garments, which supplied products to Fresh Agency Ltd, a New Zealand company solely owned and directed by the respondent.
[5] Fresh Agency Ltd acted as the exclusive distributor of the applicant’s products in New Zealand.
[6] On or about 2 November 2023, the respondent executed a personal guarantee in favour of the applicant, securing all debts and liabilities of Fresh Agency Ltd to the applicant.
[7] From March 2025, the applicant says that Fresh Agency Ltd began to default on payments, accumulating a debt of NZD 479,173.54, as evidenced by an account statement and supporting invoices and credit notes. The applicant says that, despite repeated requests, the respondent failed to satisfy the debt under her personal guarantee.
[8] Without any prior notice to the applicant, on 26 June 2025, Fresh Agency Ltd was placed into liquidation by shareholder resolution. The respondent’s other company, Friends Store Ltd, was also placed into liquidation on 1 July 2025.
[9] The respondent is a joint owner of the property at 2/9 Tainui Street, Torbay, which is scheduled for auction on 31 July 2025. The property is subject to a mortgage in favour of Basecorp Finance Ltd and a caveat registered by Bizcap NZ Ltd, which provided a loan to the respondent secured by an agreement to mortgage. The caveat was registered on 9 July 2025, despite the loan agreement being dated 3 February 2025.
[10] The applicant is concerned that, following the sale, the respondent may dissipate the proceeds, leaving the applicant unable to enforce any judgment obtained in respect of the guarantee.
Legal principles
[11] The general principles for the grant of freezing orders are well settled. There must be:1
(a)a good arguable case on the applicant’s substantive claim;
(b)assets of the respondent to which the orders can apply;
(c)a real risk the respondent will dissipate or dispose of those assets to defeat any judgment.
[12] Finally, it must be in the interests of overall justice that the orders be granted. The Court weighs the interests of justice so as to strike a balance between the need to protect the applicant, and to avoid undue prejudice or hardship to the respondents or any third parties.
1 Bank of New Zealand v Hawkins [1989] 1 PRNZ 451 (HC), subsequently approved by the Court of Appeal in Shaw v Narain [1992] 2 NZLR 544 (CA) at 548.
[13]More specifically, r 32.5(4) of the High Court Rules 2016 provides:
The court may make a freezing order or an ancillary order or both against a judgment debtor or prospective judgment debtor if the court is satisfied, having regard to all the circumstances, that there is a danger that a judgment or prospective judgment will be wholly or partly unsatisfied because—
(a)the judgment debtor, prospective judgment debtor, or another person might abscond; or
(b)the assets of the judgment debtor, prospective judgment debtor, or another person might be—
(i)removed from New Zealand or from a place inside or outside New Zealand; or
(ii)disposed of, dealt with, or diminished in value (whether the assets are in or outside New Zealand).
[14] Under limb (b), an applicant needs to point to circumstances from which a prudent, sensible commercial person can infer a danger of default.2 Mere suspicion is insufficient — there must be a “real risk”.3
[15]There are limitations placed on the jurisdiction set out in r 32.6(2) and (3):
32.6 Form and further terms of freezing order
…
(2)If the likely maximum amount of the applicant’s claim is known, the value of the assets covered by the freezing order must not exceed that amount together with interest on that amount and costs.
(3)The freezing order must not prohibit the respondent from dealing with the assets covered by the order for the purpose of —
(a)paying ordinary living expenses; or
(b)paying legal expenses related to the freezing order; or
(c)disposing of assets, or making payments, in the ordinary course of the respondent’s business, including business expenses incurred in good faith.
2 Gold Star Invest Ltd v V [2019] NZHC 3504 at [62].
3 He v Chen [2017] NZHC 1933 at [13]–[14].
[16] Reflecting those limitations, it is well established that payments in the ordinary course of business, and of validly owed and liquidated debts by a respondent, will not be regarded as dissipation of assets.4
[17] A freezing order acts in personam against a defendant or a third party who has control of a defendant’s assets and does not create any proprietary interest in the assets frozen.5 Therefore, it does not defeat any existing third party legal or equitable interests in the property. Furthermore, the freezing order jurisdiction is not designed to sort out arguments as to priority between creditors,6 nor is the jurisdiction designed to provide a plaintiff with pre-judgment security,7 or to allow one creditor relief from what is perceived to be the preferment of another creditor.8
[18] In this case, the application is made prior to substantive proceedings being commenced to obtain judgment, and in circumstances where the applicant intends to commence proceedings in Australia under contractual choice of forum and submission to jurisdiction clauses. For proceedings involving Australia, the Trans-Tasman Proceedings Act 2010 and the associated Regulations and Rules explicitly provide for New Zealand courts to grant interim relief, including freezing orders, in support of civil proceedings commenced in Australian courts. Section 32 of the Act allows the New Zealand court to grant any interim relief it considers appropriate, as if the proceedings were before a New Zealand court, so long as the relief would have been available in a similar domestic proceeding.
4 See Settlers Honey Ltd v First Honey NZ Ltd [2021] NZHC 1086 at [25]–[26], where Campbell J found that other types of payments were held to create a risk of dissipation.
5 Primary Services NZ Ltd v Fonagy [2019] NZHC 3050, [2020] NZAR 416 at [30]; and Dodssuweit v Olivier [2018] NZHC 2394, [2018] NZAR 1489 at [19]–[20].
6 Fortune Mile International Ltd v Judge [2014] NZHC 3146 at [29].
7 Harper v Love [2022] NZHC 2256 at [19(b)]; and Whitmarsh v A’mon Corp Ltd (1988) 2 PRNZ 576 (HC). See also Ninemia Maritime Corp v Trave Schiffahrtsgesellschaft GmbH & Co KG [1983] 1 WLR 1412 (QB & CA) at 1419; and Derby & Co Ltd v Weldon (Nos 3 & 4) [1989] 2 WLR 412 (CA) at 419.
8 Fortune Mile International Ltd v Judge, above n 6, at [34], referencing Whitmarsh v A’mon Corp Ltd, above n 7, at 582; and Oaks Hotels & Resorts NZ Ltd v Body Corporate 358851 [2013] NZHC 2695 at [20].
[19] In Huang v Huang,9 the Court of Appeal made clear that a freezing order can be obtained in New Zealand in support of substantive proceedings outside New Zealand, and that there need not be substantive proceedings before a New Zealand court. In Commerce Commission v Viagogo AG,10 the Court of Appeal recognized that freezing orders may be granted under the High Court Rules where the cause of action is justiciable in an overseas court, and that interim relief may be granted in support of proceedings commenced or to be commenced outside New Zealand.
[20] If a without notice freezing order is granted, the application must be listed on a return date “as early as practicable after the freezing orders are made”, for the application to be addressed on an on notice basis.
Applicant’s submissions
[21] The applicant submits that the requirements for the grant of an interim freezing order or interim injunction are satisfied:
(a)Good arguable case: The applicant has a good arguable case on the substantive claim, being a clear contractual entitlement under the personal guarantee executed by the respondent, supported by documentary evidence and a detailed account of the outstanding debt.
(b)Assets to which the order can apply: The respondent’s interest in the property at 2/9 Tainui Street, Torbay, is a substantial asset within the jurisdiction, and is the subject of the proposed order.
(c)Real risk of dissipation: There is a real risk that the respondent will dissipate or dispose of the sale proceeds to defeat the applicant’s claim, as evidenced by the respondent’s financial distress, the liquidation of both her companies within a short period, the imminent sale of her only substantial asset, and the recent registration of a caveat by a third-party lender.
9 Huang v Huang [2024] NZCA 5, [2024] 2 NZLR 376 at [65].
10 Commerce Commission v Viagogo AG [2019] NZCA 472, [2019] 3 NZLR 559 at [61].
(d)Balance of convenience and justice: The balance of convenience favours the grant of the order, as the potential prejudice to the applicant if the proceeds are dissipated outweighs any temporary restriction on the respondent’s dealings with the property. The order sought is interim only, for up to 10 working days, to allow the matter to be listed before a Duty Judge and for any affected parties to seek variation or discharge.
(e)Undertaking as to damages: The applicant has provided an undertaking as to damages, and is a well-resourced company capable of meeting any such liability.
(f)Without notice justification: The application is made without notice due to the risk of dissipation and the urgency created by the scheduled auction, such that giving notice would cause undue delay or prejudice to the applicant’s interests.
Analysis
[22] For the reasons set out above, I accept that the applicant has a good arguable case on the substantive claim. There are assets to which the order can apply and there is a real risk of dissipation given the liquidation of her companies and sale of the Property, all without disclosure or engagement with the applicant.
[23] I accept that the balance of convenience favours freezing orders being granted, but it is already clear to me that other third parties would be adversely affected by a freezing order being granted in unqualified terms. In particular, there is no proper basis for the applicant to inhibit steps that already seem to be underway to the prejudice of secured creditors. If the Property was sold at auction earlier today, then the purchaser also has an interest in land that takes priority over any unsecured claim. To address these issues, I have provided for exceptions to allow the sale to proceed without prejudicing such interests, on condition that the respondent’s interest in any proceeds of sale is instead to be frozen in the solicitor’s trust account.
[24] I have made these orders on an urgent without notice basis and set an early return date of 7 August 2025 so that the Court is advised as soon as possible about the status of the Property and the effect on any third parties.
Result
[25] I grant an interim freezing order restraining the respondent from disposing, or dealing with, or diminishing her interests in 2/9 Tainui Road, Torbay Auckland, Record of Title NA90A/271 (North Auckland Registry), Legal Description Flat 2 DP 150983, 1/2 SH Lot 6 DP 9855 (“Property”), or any proceeds of sale of the Property, until further orders of the Court, except that this order does not prevent:
(a)settling any contractual obligation with an arm’s length purchaser that is unconditional at the time the order is served;
(b)any creditor with a secured interest registered over the Property exercising their secured rights; or
(c)satisfying any creditor claims that are established as superior to the applicant’s claims, including the claims of secured creditors and preferential creditors.
[26]If a sale of the Property proceeds under one of the exceptions contemplated in
[25] above, then the respondent’s entitlement to any remaining sale proceeds payable to the respondent (after payment of superior claims) must be held in the solicitor’s trust account pending further order of the Court.
[27] The standard exceptions in Form G38 of the High Court Rules also apply, and I set a maximum amount of $600,000.
[28] I ask Registry to schedule the return date for this matter in the Duty Judge list at 10 am on 7 August 2025.
O’Gorman J
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