Purucker v Huebler - [2023] NZHC 981

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-000058

[2023] NZHC 981

BETWEEN
MARINA ALEXANDRA PURUCKER

Plaintiff

AND

IRIS HUEBLER

First Defendant

AND

RAINER WOLFGANG HUEBLER

Second Defendant

On the Papers

Counsel:

J Pietras for Plaintiff

First Defendant self-represented G Downing for Second Defendant

Judgment:

28 April 2023

JUDGMENT OF ISAC J

[Court appointed expert and adjournment]

Introduction

[1] A five day trial of this proceeding is scheduled to commence on 8 May 2023. The first defendant, Ms Iris Huebler, is a serving prisoner. On 31 March 2023, she filed an interlocutory application seeking the appointment of an independent forensic expert. That application was given a return date of 8 May 2023, being the first day of the trial.

[2] Subsequently, in a letter of 23 April 2023, Ms Huebler sought an adjournment of the trial. In support of that application she points to the following matters:

PURUCKER v HUEBLER & ANOR [2023] NZHC 981 [28 April 2023]

(a)the inability to have her interlocutory application for the appointment of an independent expert determined before the trial;

(b)her current lack of access to a personal laptop and diaries which, she submits, are needed for her preparation for the trial.

[3] I convened a teleconference with Ms Huebler and counsel on 26 April 2023. Following that discussion, I indicated that I would deal with the applications for an appointment of an independent forensic accountant, and for an adjournment, on the papers.

Procedural background

[4] The plaintiff, Marina Purucker, commenced these proceedings against the defendants in 2018. The third amended statement of claim alleges that Ms Huebler was Ms Purucker’s bookkeeper from 2003 in relation to a café Ms Purucker operated in Tākaka. Between mid-2011 and October 2018, Ms Purucker is said to have travelled to her native Germany to look after her parents and an aunt, spending more than half of her time overseas. She then alleges that the first defendant, over a period of more than six years, between May 2012 and October 2018, fraudulently misappropriated in the order of $873,364.93 of the plaintiff’s funds.

[5] Relevant to the current applications is the plaintiff’s allegation that following a prosecution that commenced in 2019, in 2021 Ms Huebler pleaded guilty to and was convicted of five counts of theft by a person in a special relationship. It is said that subsequently Ms Huebler applied to vacate her guilty pleas but was unsuccessful in that application. As a result, on 11 October 2022 she was sentenced in the Nelson District Court to four years’ imprisonment for the offending against Ms Purucker.

[6] In a separate cause of action, Ms Purucker seeks a judgment against both defendants for money had and received relating to two sums, $138,090.29 and
$19,300.00. These sums are said to represent amounts either transferred into the defendants’ joint back account, or were written in cheques cashed by the second defendant, Mr Huebler, from the plaintiff’s bank account.

Should the Court appoint…

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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Details

Case: [2023] NZHC 981
Decision Date: 28 April 2023

CaseChat Overview and Summary

In the High Court of New Zealand, Marina Alexandra Purucker, the plaintiff, filed a lawsuit against Iris Huebler and Rainer Wolfgang Huebler, the first and second defendants, respectively. The case, numbered CIV-2018-442-000058, was heard in the Nelson Registry. The plaintiff alleges that Iris Huebler, her former bookkeeper, misappropriated funds from her café business in Tākaka over a period of six years. Additionally, the plaintiff seeks judgment against both defendants for money received relating to two specific sums. The first defendant, Iris Huebler, filed an interlocutory application for the appointment of an independent forensic expert and an adjournment of the trial due to her lack of access to personal resources necessary for trial preparation.

The court had to determine whether to appoint an independent forensic expert and whether to grant an adjournment of the trial. Under Rule 9.36 of the High Court Rules 2016, the court has the discretion to appoint a court expert if a question for an expert witness arises. The court considered whether such an appointment was necessary and whether it would result in a fair and efficient trial. In the case of the adjournment, the court had to weigh the interests of justice, considering the efficient use of court resources, the relative prejudice to the parties, and the right to a fair trial.

The court found that the appointment of a court expert was not necessary, as the first defendant, who is a bookkeeper, was financially literate and capable of addressing the factual issues. Furthermore, the request for an expert was made at the last minute, and it would not be possible to grant the application without causing undue delay. The court also concluded that there would be no material prejudice to the first defendant in proceeding with the trial as scheduled, as she had access to the necessary evidence and could receive any further material as the trial progressed. Therefore, the court dismissed both the application for an expert and the application for an adjournment.

In conclusion, the court denied the first defendant's application for the appointment of an independent forensic expert and the adjournment of the trial. The costs of these applications were reserved, and leave to apply was reserved.

Orders