Roebuck v Roebuck - [2021] NZHC 2619

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CIV-2021-441-70

[2021] NZHC 2619

BETWEEN
JASON GREGORY ROEBUCK and VICTORIA ANN ROEBUCK
First Applicants

JASON GREGORY ROEBUCK, VICTORIA ANN ROEBUCK and
PETER JOHN ROEBUCK as TRUSTEES OF THE TAHI TRUST

Second Applicants

AND

LIDDLE BUILDERS & CONSTRUCTION LIMITED

Respondent

On the papers: 1 October 2021

Counsel:

J L Bates for Applicants N Gray for Respondent

Judgment:

1 October 2021

JUDGMENT (NO. 2) OF CHURCHMAN J

[1] As detailed in my first judgment in this matter1 on 28 September 2021, the applicant applied, on a without notice basis, for ancillary orders in respect of a prospective freezing order.

[2] On 29 September 2021, a hearing by way of teleconference occurred with Mr Gray appearing, on a Pickwick basis, for the respondent.

1 Roebuck & Ors v Liddle Builders & Construction Ltd [2021] NZHC 2591.
ROEBUCK & ORS v LIDDLE BUILDERS & CONSTRUCTION LIMITED (NO. 2) [2021] NZHC 2619
[1 October 2021]

[3] The matter was adjourned to allow Mr Gray to obtain instructions as to whether or not he would file a copy of a balance sheet that had been requested.

That has now been done.

[5] In [4] of counsel’s memorandum that accompanied the filing of the balance sheet, counsel indicated that the first respondent or its accountant was willing to identify the persons or entities to whom the proceeds of sale of the property at 17 Taruna Place, Havelock North were applied.

[6] It was indicated that this information could be provided by affidavit either the affidavit of the first respondent which could be filed on 1 October, or the affidavit of the first respondent’s accountant which could not be filed until 4 October.

[7] By memorandum of 1 October 2021, counsel for the applicants confirmed that the applicants do require the first respondent to file such an affidavit.

[8] That memorandum also refers to the need to “…include in the disclosure the underlying transaction records to confirm the payments to creditors and time should be allowed for proper searchers of those records, either alone or in concert with the First Respondent’s Accountant”.

[9] The applicants’ solicitor proposed the making of an order in the following terms:

(a)The Respondent is ordered to disclose and verify by affidavit all records including without limitation Bank Statements and transaction records that identify persons to whom net proceeds of sale of a property at 17 Taruna Place, Havelock North, were applied and in what amounts, and for what purpose including when each debt arose.

(b)The verified affidavit be filed and served within 2 working days of the grant of such order.

(c)Costs be reserved.

[10] The proposed order goes slightly further than the approach set out in the memorandum of counsel for the respondent of 30 September 2021, but the contents of the proposed order mirror what was sought in the application.

[11] The original application was made under Part 32 of the High Court…

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 Roebuck v Roebuck

Details

AGLC: Roebuck v Roebuck [2021] NZHC 2619
Case: [2021] NZHC 2619
Decision Date: 1 October 2021

CaseChat Overview and Summary

The applicants, Jason Gregory Roebuck, Victoria Ann Roebuck, and Peter John Roebuck as trustees of the Tahi Trust, sought ancillary orders in relation to a prospective freezing order against the respondent, Liddle Builders & Construction Limited. The applicants contended that the respondent had engaged in asset-stripping to avoid liability for debts owed to them. The case was heard in the High Court of New Zealand at Napier. The legal issues revolved around whether the applicants had a proper basis for commencing proceedings on a without notice basis and whether the court should grant the ancillary orders sought. The court found that the applicants had established a serious arguable case that the respondent was engaged in asset-stripping to judgement-proof itself against prospective claims. The court was satisfied that the facts set out in the affidavits of Mr Roebuck and Mr Kitchin provided a proper basis for commencing proceedings on a without notice basis. The court found that the remedy of ancillary restraining orders was available in such circumstances. The court made orders requiring the respondent to disclose and verify by affidavit all records identifying persons to whom net proceeds of the sale of a property at 17 Taruna Place, Havelock North, were applied, and in what amounts and for what purpose. The court also reserved leave to the applicants to apply for further directions or relief if any issue as to compliance with the ancillary order arose and reserved leave to the respondent to move, on notice, to set aside or vary these orders.

Orders