Palmer v Whelan

[2014] NZHC 105

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-000166 [2014] NZHC 105

BETWEEN  PATRICIA ANN PALMER Plaintiff

ANDRAYMOND RICHARD WHELAN First Defendant

ANDVISION FINANCIAL SERVICES (2001) LIMITED

Second Defendant

Hearing:                   10 February 2014

Appearances:           C T Patterson on Instructions for

E J Grove for the Plaintiff
No Appearance of or for the Defendants

Judgment:                10 February 2014

(ORAL) JUDGMENT OF DUFFY J

Counsel:     C T Patterson, Auckland

PALMER v WHELAN and ANOR [2014] NZHC 105 [10 February 2014]

[1]      Mrs Palmer is an elderly woman.   She suffers from a neuro-degenerative disorder.  She has a litigation guardian, her daughter, Monique Palmer, who brings the proceeding on Mrs Palmer’s behalf.

[2]      Today Mrs Palmer makes an interlocutory application on notice for a freezing order and ancillary disclosure order against the first defendant, Raymond Whelan, and the second defendant, Vision Financial Services Limited, a company of which Mr Whelan is a director.

[3]      There is no appearance by either of the defendants.  Mrs Palmer has filed an affidavit of service confirming service of the interlocutory application on the defendants.

[4]      The grounds on which the interlocutory orders are sought are that Mrs Palmer has  a  good  arguable  claim  against  the  defendants  for  an  amount  not  less  than

$450,000,  as  set  out  in  her  claims  in  the  statement  of  claim  filed  in  these proceedings.  It is also said that there are good grounds to believe that the defendants have assets in New Zealand, in particular because the defendants were managing funds totalling no less than $450,000 for Mrs Palmer and have not accounted to her for those funds.   It is said that there exists a credible and material risk that if the freezing order is not granted, the defendants will dissipate their assets so as to frustrate any recovery by Mrs Palmer.   In particular, the defendants have failed to account to Mrs Palmer since March 2013 as to the whereabouts of her invested funds.

[5]      The grounds on which the application is made are fully supported by the affidavit of Monique Palmer.  I have read the affidavit and the exhibits attached to the affidavit.  Those exhibits show that the defendants, whilst providing Mrs Palmer with financial advice, have benefited through a loan of $100,000 to Mr Whelan personally.  Other sums of money were invested by the defendants on Mrs Palmer’s behalf, and the defendants have not provided Monique Palmer with any satisfactory explanation as to where the funds might now be.

[6]      I am satisfied that there is a real risk that unless the orders as sought are made, the funds will be dissipated and Mrs Palmer will be unable to sensibly pursue her proceedings against the defendants. Accordingly, I make the orders as sought.

[7]      I direct that as regards [7] of the draft Court order filed by Mrs Palmer, should either or both defendants apply to discharge or vary the orders made today, they are required to give the applicant not less than five working days’ notice.

Duffy J