G Dewar and J Pietras for Plaintiff First Defendant self-represented
G Downing for Second Defendant
Judgment:
18 August 2023
Reissued:
18 August 2023
JUDGMENT (No 3) OF ISAC J
PURUCKER v HUEBLER [2023] NZHC 2246 [18 August 2023]
TABLE OF CONTENTS
The case [1]
The trial [3]
The claim and defences [6]
Ms Huebler’s defence [10]
Mr Huebler’s defence [12]
Issues for determination [14]
Did Ms Huebler appropriate $868,954.24 from Ms Purucker? [15] Ms Purucker and Ms Huebler establish a business relationship [17] Sale of The Dangerous Kitchen and Ms Purucker’s regular travel overseas [24] Discovery of the fraud [33]
Ms Purucker files civil proceedings and Mr and Ms Huebler dispose of
their joint assets [42]
Ms Huebler is convicted of fraud [45]
Consideration [52]
Is Ms Huebler liable to Ms Purucker in respect of any sums appropriated
from Ms Purucker? [58]
First cause of action against first defendant – breach of fiduciary duty [59]
Exemplary damages [65]
Second cause of action against first defendant – money had and received [70] Is Mr Huebler liable to Ms Purucker for money had and received? [82] Deposits to the joint bank account [83]
Mr Huebler’s presentation of Ms Purucker’s cash cheques at ANZ bank [89]
Is the separation agreement void as against Ms Purucker as a device to
defeat creditors? [93]
The defendants’ joint ownership of property and treatment of business
affairs prior to separation [98]
The defendants’ subsequent division of assets [103]
The defendants’ post-separation conduct [112]
Jurisdiction [118]
Consideration [123]
Conclusion and result [128]
Costs [133]
The case
[1] In this proceeding the plaintiff, Ms Alexandra Purucker, seeks judgment against the defendants relating to funds stolen from her by the first defendant, Ms Huebler. She also seeks an order setting aside a separation agreement and bank transfers between Ms Huebler and her husband, Mr Rainer Huebler, the second defendant, as dispositions intended to defeat creditors.
[2] Ms Purucker purchased a well-known café in Tākaka in 2003. She met Ms Huebler and employed her as her bookkeeper and, subsequently, an investment adviser. The two women—both German nationals—became close friends. Then 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. Shortly after that Police carried out an investigation which culminated in Ms Huebler’s conviction on five charges of fraud and eventual imprisonment.
The trial
[3] The trial before me took place over five days. Ms Purucker called three witnesses and gave evidence herself. Ms Huebler represented herself and despite the opportunity to give evidence chose not to do so. The only witness to give evidence on behalf of the defendants was Mr Huebler.
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.
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AGLC
Purucker v Huebler [2023] NZHC 2246
Case
[2023] NZHC 2246
Decision Date
CaseChat Overview and Summary
In the High Court of New Zealand Nelson Registry, Marina Alexandra Purucker sought judgment against Iris Huebler and Rainer Wolfgang Huebler for funds stolen by Iris. Purucker also sought an order setting aside a separation agreement and bank transfers between the defendants as dispositions intended to defeat creditors. The trial took place over five days. Purucker called three witnesses and gave evidence herself. Iris represented herself but chose not to give evidence. Mr Huebler was the only other witness. Purucker's claims against Iris included a breach of fiduciary duty, money had and received, and a claim for exemplary damages. Purucker's claims against both defendants included a claim for money had and received and a declaration that specific dispositions and transactions, including a separation agreement between the defendants, were transactions intended to defeat the interests of Iris' creditors and therefore void under s 47(1) and (2) of the Property (Relationships) Act 1976. Iris denied any fraud had taken place. She claimed the money had all been returned to Purucker, and the reason it was now "missing" was due to Purucker's lavish spending on overseas travel and improvements to her home. Mr Huebler did not seek to raise a positive defence inconsistent with Iris' convictions for fraud. He focused instead on the legitimacy of the separation agreement and related transactions, and a denial that either he or Iris had an intention to defeat the claims of her creditors, and in particular Purucker, when they entered into the agreement. The court concluded that Iris had unlawfully obtained $868,954.24 of Purucker's funds and these funds had not been repaid. The stolen money was principally made up of the $700,000 for which Iris was convicted and sentenced. The court found that Iris was liable to Purucker in respect of any sums appropriated from her. The court found that Iris was liable to Purucker for breach of fiduciary duty in the sum of $766,537.58, together with exemplary damages of $50,000. The court found that Iris was also liable to Purucker for money had and received in the sum of $868,954.24. The court found that Mr Huebler was liable to Purucker for money had and received in the sum of $155,127.29. The court found that the separation agreement between the defendants and related transfers of property were void as an agreement intended to defeat creditors under s 47 of the Property (Relationships) Act. The court ordered that judgment be entered for Purucker against Iris for breach of fiduciary duty, together with exemplary damages, and for money had and received. The court also ordered that judgment be entered for Purucker against Mr Huebler for money had and received. The court awarded interest on the amounts for which judgment had been entered. The court declared that the separation agreement between the defendants and related transfers of property were void. The court reserved the question of costs.