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.

1. 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 Rules 2016. It was dealt with by the Court on a without notice basis (albeit with the assistance of Mr Gray at short notice). Any order made by the Court therefore can only be an interim one.

[12]             I am satisfied that the facts set out in the affidavits of Mr Roebuck  and      Mr Kitchin disclose a proper basis for commencing proceedings on a without notice basis. It is seriously arguable that the respondent in engaged in a process of transferring assets to other entities in order to judgement proof itself against prospective claims by the applicants.

[13]The remedy of ancillary restraining orders is available in such circumstances.2

[14]Pending further direction of the Court, I make the following orders:

(a)the orders as set out in [9] above;

(b)leave is reserved to the applicants to apply for such further directions/relief if any issue as to compliance with the Ancillary Order arises; and

(c)leave is reserved to the respondent to move, on notice, to set aside or vary these orders.

Churchman J

Solicitors:

Brown & Bates Lawyers, Napier for Applicants Sainsbury Logan & Williams, Napier for Respondent

2      Primary Services New Zealand Ltd v Colombo Projects Ltd & Ors [2020] NZHC 101.