TGR Helicorp Limited (in rec) v Rogers HC Auckland CIV 2008-404-004109

[2011] NZHC 256

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-004109

BETWEEN  TGR HELICORP LIMITED (IN RECEIVERSHIP)

First Plaintiff

ANDBASTIA INVESTMENTS LIMITED, GEORGE PETER GLAISTER & SONIA LEE GLAISTER AND PETER MARSDEN BARRY, ANDREA, CAROL BARRY & DAVID MARSDEN BARRY Second Plaintiffs

ANDGLENDA FRANCES ROGERS AND TREVOR VICEMAR ROGERS Defendants

Hearing:         25 March 2011

Counsel:         D Salmon and M Heard for the Plaintiffs

P Webb and A J Kingston for the Defendants

Judgment:      25 March 2011

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr D Salmon / Mr M Heard, LeeSalmonLong, Solicitors, Auckland

Mr P Webb, Barrister, Manukau

Mr B Webb, Webb Morice, Solicitors, Pukekohe

TGR HELICORP LIMITED (IN RECEIVERSHIP) V ROGERS AND ROGERS HC AK CIV 2008-404-004109

25 March 2011

[1]      The procedural history of these committal proceedings is contained in earlier judgments. At the last hearing on 3 March 2011 I gave Mr and Mrs Rogers a further opportunity  to  comply  with  the  orders  that  had  been  made  and  which  I  had concluded they were continuing to defy.   The orders have still not been complied with.

[2]      At the last hearing I made clear that if there is continued non-compliance there were likely to be orders for committal to prison of Mrs Rogers and further committal of Mr Rogers.  The reasons, again, are fully set out in earlier judgments and in particular in the substantive judgment delivered in December 2010.

[3]      Mr and Mrs Rogers in fact continue positively to contend that they do not have any of the assets that I concluded that they do have.  They therefore continue to maintain a position that I have found is false. And again, this is for all of the reasons set out at length in the December judgment.   There is no point in repeating those reasons here.

[4]      There  are,  in  my  judgment,  ample  grounds  in  the  light  of  the  earlier conclusions for committal.  This is subject to three things: Mr Rogers’ health; Mrs Rogers’ health; and an offer that was made by Mr and Mrs Rogers to the plaintiffs.

[5]      I will deal with the offer first.  It is a proposal that Mr Rogers reproduce the drawings of one of the Snark versions.  The letter of offer indicates that Mr Rogers anticipated that he could do this over 9 months.  The proposal is that the receiver pay Mr Rogers and that the receiver also pay for space in which this could be done and for a draughtsman and computers and software and other particular facilities.   I consider that proposal breathtaking when assessed in the light of everything that has gone before.  It does not assist in any way in meeting the obligations arising from the orders of this Court.   That includes orders to produce drawings that Mr Rogers expressly stated in e-mails to third parties that he had in bank depositories in Europe.

[6]      Mr Rogers’ health is a matter that was considered at the last hearing and is noted in my last judgment.   I have since received, in confidence, a careful report from a general medical practitioner.  This confirms that there are a number of health

issues for Mr Rogers.   As in any case where consideration is being given to committing someone to jail health must be taken into account.   However, there is nothing in this report which indicates clearly that if Mr Rogers is in prison there will be materially enhanced risk for him in relation to his health.   That observation is made on the premise that the prison authorities will have full particulars of Mr Rogers’ health needs, if I can put it that way, at the time of his committal.  I believe that an order for committal can be made on terms which will seek to ensure that that occurs.

[7]      The medical report also deals with Mrs Rogers’ general health.  I have noted those matters, but they do not indicate anything which in my judgment would be sufficient to refrain from committing Mrs Rogers to prison.   This is what I made clear in the earlier judgment was likely to happen, subject to any further evidence about health.

[8]      For these reasons, and everything that has gone before, I do conclude that both Mr and Mrs Rogers should be committed to prison for a period of one month. That order is to take effect this coming Monday, 28 March 2011.   The reason for deferring the committal  is  to  enable Mr Webb  to  provide to  appropriate prison authorities all relevant medical information.

[9]      It is a further condition of the committal of Mr Rogers that he is not to be received into prison to commence the period of imprisonment unless the prison authorities are able to ensure that the medication that Mr Rogers is required to take daily will always be available for him to take daily.

[10]     These  orders  are  to  be  implemented,  firstly,  by  Mr  and  Mrs  Rogers surrendering themselves to this Court at 2:00 pm next Monday, 28 March 2011, for

the purposes of committal.

Peter Woodhouse J