Solicitor-General v Bujak - [2012] NZHC 1049

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2007-485-000522 [2012] NZHC 1049

IN THE MATTER OF an application under the Proceeds of Crime Act 1991 and Mutual Assistance in Criminal Matters Act 1992

BETWEEN THE SOLICITOR-GENERAL OF NEW ZEALAND
Applicant

ANDSLAWOMIR RYSZARD BUJAK First Respondent

ANDDANUTA ALEKSANDRA ZALWOWSKA-SPISAK Second Respondent

CIV-2008-409-001901 [2012] NZHC 1049

AND BETWEEN MARCOS ERIK MONASTERIO AND MARIA JOSE MARCOS MOYA Plaintiffs

ANDSLAWOMIR RYSZARD BUJAK First Defendant

ANDDANUTA ALEKSANDRA ZALWOWSKA-SPISAK Second Defendant

ANDHUGH SHEARER Third Defendant

Hearing: 3 April 2012

Counsel: M F Laracy for Solicitor-General
F C Deliu In Person
M E Monasterio In Person (for part of proceeding only)

Judgment: 14 May 2012

THE SOLICITOR-GENERAL OF NEW ZEALAND V SLAWOMIR RYSZARD BUJAK HC CHCH CIV-2007-
485-000522 [14 May 2012]

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] This judgment determines an application dated 27 April 2010 by Dr F C Deliu, solicitor, in which he seeks the following orders:

(a) That he be joined to the proceeding with the file number CIV-2008-

409-001901, or alternatively to CIV-2007-485-000522.

(b)That his legal fees for work undertaken on behalf of Mr Slawomir Bujak in relation to his extradition and/or leaky home dispute be paid (as per [amended] invoices).

(c) That the freezing order in CIV-2008-409-001901 be amended to allow payment of all work he did on behalf of Mr Bujak.

(d) Such other order as deemed fit by this honourable Court.

[2] Both these proceedings arise from the affairs of Mr Bujak. In the present application the Solicitor-General applied for registration of a restraining order on the assets of Mr Bujak issued by a regional court in Poland. The 2008 proceeding was brought by Mr Monasterio and Ms Moya against Mr Bujak for deceit, negligence and other claims in relation to a leaky building.

[3] In a judgment dated 24 February 2011 Fogarty J set out the steps taken in the High Court, Court of Appeal and Supreme Court in relation to these proceedings. It is unnecessary to repeat this summary in this judgment.

[4] In this country the assets of Mr Bujak comprise real estate and a modest sum in cash, held by the Official Assignee. Unless it has lapsed (as discussed below) the restraining order in favour of the Polish Government remains in place, and the freezing orders issued in this court, as amended, also remain in force.

[5] Dr Deliu wishes to be joined to both proceedings and to receive orders that legal fees owed to him by Mr Bujak be paid to him from the cash sum to which I

have referred. Mr Deliu acted for Mr Bujak in relation to the claims made in the

2008 proceeding, and also in relation to extradition proceedings which ultimately led to Mr Bujak leaving New Zealand and returning to Poland.

[6] As far as I am aware Mr Bujak accepts that the fees charged by Mr Deliu were properly incurred and are payable; although not expressly raised in the Solicitor-General’s notice of opposition or amended notice of…

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: [2012] NZHC 1049
Decision Date: 14 May 2012

CaseChat Overview and Summary

In the case of Solicitor-General v Bujak, the court was faced with an application by Dr F C Deliu, a solicitor, seeking to be joined as a party to two related proceedings, and for payment of legal fees from the proceeds of sale of assets of Mr Slawomir Bujak, held by the Official Assignee. The proceedings involved a Polish restraining order registered in New Zealand, and a freezing order made in relation to Mr Bujak's assets by the High Court. The court had to decide whether Dr Deliu had standing to be joined as a party and, if so, whether his fees could be paid from the proceeds of sale of Mr Bujak's assets. The court also had to determine the effect of the registration of the Polish restraining order on the freezing order and the broader legal issues relating to the enforcement of foreign restraining orders in New Zealand.

The court found that Dr Deliu had standing to be joined as a party to both proceedings. It rejected Dr Deliu's argument that the registration of the Polish restraining order had lapsed and that the Criminal Proceeds (Recovery) Act 2009 applied to the registered order. Instead, the court held that the Mutual Assistance in Criminal Matters Act 1992, as amended, continued to apply to the registered order and that the Proceeds of Crime Act 1991, though repealed, remained in force for the purpose of completing proceedings commenced under that Act. The court also held that the freezing order did not require the payment of Dr Deliu's fees and that any such payment should await a full analysis of the financial position once decisions had been made in relation to the future of the registered restraining order.

The court dismissed Dr Deliu's application for payment of his fees but reserved leave to him to apply again for such orders if and when there was a change or proposed change in the status of the registered Polish restraining order, or the freezing order, such that distribution of the remaining New Zealand assets of Mr Bujak fell for consideration. Costs were also reserved.

Orders