Purucker v Huebler - [2023] NZHC 2429

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-58

[2023] NZHC 2429

BETWEEN
MARINA ALEXANDRA PURUCKER

Plaintiff

AND

IRIS HUEBLER

First Defendant

RAINER WOLFGANG HUEBLER

Second Defendant

Hearing: 30 August 2023

Appearances:

J J Pietras for Plaintiff I Huebler in person

G M Downing for Second Defendant

Judgment:

31 August 2023

JUDGMENT OF GRICE J

(Charging orders)

Introduction

[1] This matter initially came before the Court as a without notice application by the plaintiff for freezing orders over various assets following a judgment in her favour against the defendants. An interim freezing order was granted pending hearing the application on a Pickwick basis which was set down for today.1

[2] Since the interim freezing order was granted on 23 August 2023 the parties have had an opportunity to take steps to resolve the matters between them and today have filed a joint memorandum indicating that the freezing order could be granted by

1 Minute of McQueen J dated 23 August 2023.

PURUCKER v HUEBLER [2023] NZHC 2429 [31 August 2023]

consent. In addition, a charging order was sought over the relevant property which would make the freezing order redundant.

Background

[3] The background to this matter was summarised in the decision of Isac J dated 18 August 2023.2 The claim was for the recovery of funds stolen from Ms Purucker by Ms Huebler. The plaintiff had employed Ms Huebler as her bookkeeper and subsequently an investment adviser. They had become close friends. Ms Purucker ran a well-known cafe in Tākaka. Between April 2012 and October 2018 Ms Huebler misappropriated at least $700,000 of Ms Purucker’s funds. Ms Purucker did not discover the fraud until late 2018 on returning to New Zealand from a long period overseas. Ms Huebler was convicted on five charges of fraud and imprisoned.

[4] His Honour granted judgment against the first defendant for $868,954.24 together with exemplary damages of $50,000 and interest on those amounts. Judgment for $155,127.29 plus interest was entered against the second defendant with his liability being joint and several with his wife, the first defendant, Ms Huebler. An order was also made setting aside a separation agreement and bank transfers between Ms Huebler and her husband as dispositions intended to defeat creditors.3

Without notice application for freezing orders

[5]The Court in the substantive decision held that dispositions of $4,561 and

$300,510 (referred to by the plaintiff as the Swiss francs, a reference to the source of the funds) from the defendants’ joint bank account to Mr Huebler’s bank accounts were void under s 47 of the Property (Relationships) Act 1976. In view of that finding, following the judgment the plaintiff sought confirmation from the second defendant as to the whereabouts of those funds and sought an undertaking that any funds held in Mr Huebler’s bank accounts would not be transferred, disbursed, or otherwise disposed of pending further enforcement action. The application to the Court for freezing orders was made when that undertaking was…

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 Purucker v Huebler

Details

AGLC: Purucker v Huebler [2023] NZHC 2429
Case: [2023] NZHC 2429
Decision Date: 31 August 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Purucker v Huebler was heard before Grice J. The plaintiff, Marina Alexandra Purucker, sought a freezing order over various assets of the defendants, Iris Huebler and Rainer Wolfgang Huebler, following a judgment in her favor for the recovery of funds misappropriated by Iris Huebler. The defendants had been found liable for substantial sums, with Iris Huebler ordered to pay $868,954.24 plus interest and exemplary damages, and Rainer Wolfgang Huebler ordered to pay $155,127.29 plus interest. The defendants had entered into a separation agreement and made bank transfers intended to defeat creditors, which the court found to be void.

The legal issues before the court included whether a good arguable case existed on the substantive claim, whether there were assets to which the freezing order could apply, and whether there was a real risk of dissipation of those assets. The court found that all these conditions were met. The substantive claim was well-founded, with Iris Huebler convicted of fraud, and there were identifiable assets, including funds in bank accounts and gold/silver bullion. The risk of dissipation was deemed significant, particularly with regard to the bullion, which could be easily hidden or sold. The court was satisfied that the interests of justice favored extending the interim freezing order, which was subsequently varied by agreement to cover the specified assets.

The court granted an interim freezing order over the identified assets until a charging order, which the plaintiff had lodged, became effective. The order was made without provision for ordinary or legal living expenses, by agreement of the parties. The interim freezing order was set to lapse upon the effectiveness of the charging order, at which point the plaintiff was to notify the court. This outcome ensured that the plaintiff could enforce her judgment while mitigating the risk of asset dissipation by the defendants.

Orders