Purucker v Huebler
[2023] NZHC 2429
•31 August 2023
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 not forthcoming.
2 Purucker v Huebler [2023] NZHC 2246. 3 At [128]–[132].
[6] Following directions made by this Court for disclosure of the details of the defendants’ bank accounts, the plaintiff became aware of funds in various bank accounts and that Mr Huebler had transferred $120,000 of Swiss francs on 30 November 2018. It was apparent that the present situation was that the defendants held some funds in a bank account, as well as gold/silver bullion and cash in a safety deposit box on their property.
[7] In summary, according to the undisputed submission of counsel for the plaintiff there are identified assets to which the freezing order can attach, being $88,641.11 held in a Kiwibank term deposit, $28,000 in cash and $88,000 in gold/silver bullion held at the defendants’ property.
Legal principles for freezing orders
[8] In order for a freezing order to be granted, the applicants are required to establish:4
(a)there is a good arguable case on the substantive claim;
(b)there are assets to which the order can apply; and
(c)there is a real risk that the defendants will dissipate or dispose of the assets.
[9] It was not contested in this case that those grounds were established. I am satisfied that they have been established. Ms Huebler has been convicted of criminal offending based on the claims the subject of the judgment. The defendants entered into a separation agreement which this Court found was void as a device to defeat creditors. In addition, following the orders of this Court to disclose bank accounts made on 22 August 2023, there was less than complete disclosure made, although I accept the time period for disclosure was tight. Nevertheless McQueen J was satisfied it was appropriate to make the interim freezing orders pending this hearing. It was only as a result of that that the parties were able to then reach an agreement.
4 High Court Rules 2016, r 32.2.
[10] I am satisfied that the risk of dissipation would remain for as long as the defendants retained control of the relevant assets, particularly the gold/silver bullion, which could easily be dissipated without trace. I also note that $197,000 of the Swiss francs funds appears to have been spent or dissipated since the substantive judgment. In my view the interests of justice weigh in favour of extending the terms of the interim freezing order on the terms sought and now agreed by the parties.
[11] Accordingly, the interim freezing order is varied by substituting the interim order made in the minute of 23 August 2023 at [13(c)] with the following interim freezing order over the following property:
(a)the total amount of $922,904.24 held in: bank accounts, as cash and as gold/silver bullion held at their property.
(b)more particularly described in the draft charging order attached to the joint memorandum dated 30 August 2023 at [1(a)(i)–(iii)].
[12] The usual provision for ordinary living expenses and legal expenses is not made, by agreement between the parties.
[13] I note that the plaintiff has lodged a charging order in the Court which will be effective over the property upon service.5 The interim freezing order made in this judgment is made until further order of the Court, whichever is the earlier. The plaintiff should advise the Court when the charging order is effective as the freezing order will no longer be necessary and should lapse.
Grice J
Solicitors:
Thomas Dewar Sziranyi Letts, Lower Hutt
5 Rule 17.42.
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