TGR Helicorp Limited (In Receivership) v Rogers HC Auckland CIV 2008-404-004109

[2008] NZHC 2648

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 MARSEN BARRY, ANDREA CAROL BARRY & DAVID MARSEN BARRY

Second Plaintiffs

ANDGLENDA FRANCES ROGERS AND TREVOR VICEMAR ROGERS Defendants

Hearing:         26 September 2008

Appearances: M Heard for the First and Second Plaintiffs

Defendants in person

Judgment:      28 October 2008 at 9:15 a.m.

INTERIM JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 28 October 2008 at 9:15 a.m. pursuant to r540(4) of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr M Heard, LeeSalmonLong, Solicitors, Auckland

Mr and Mrs Rogers, Bombay

TGR HELICORP LIMITED (IN RECEIVERSHIP) AND ANOR V ROGERS AND ROGERS HC AK CIV

2008-404-004109  28 October 2008

[1]      The  Anton  Piller  orders  made  by  this  Court  on  14  August  2008,  with variations by further orders on 15 and 18 August 2008, restrained disposal of a number of items.

[2]      These  items  are  identified  on  a  schedule  produced  by  the  first  plaintiff (“TGR”).  There is a copy attached as annexure “A” to the affidavit of the defendants (“Mr and Mrs Rogers”) sworn on 23 September 2008, with each item numbered.  I will refer to this as “the schedule”.

[3]      There was a hearing on 25 September 2008.  This was on an application filed by Mr and Mrs Rogers effectively seeking an order discharging the restraining order over almost all of the property.

[4]      An urgent hearing of the discharge application was granted on 28 August

2008 to accommodate Mr and Mrs Rogers.   After hearing submissions from Mr Rogers, for himself and Mrs Rogers, I granted an adjournment to enable Mr and Mrs Rogers to put adequate evidence before the Court in support of their contentions. The adjournment was to 23 September 2008.  There was a further adjournment to 25

September 2008 because Mr and Mrs Rogers had failed to present further evidence in an acceptable form.  The hearing on 25 September 2008 took the best part of a day.

[5]      Against this background I reserved my decision.  I have not had time to fully consider the issues and complete a judgment with reasons.

[6]      Mr and Mrs Rogers have now filed a memorandum pressing for a decision, with  this  supported  by  various  contentions  but  again  without  any  supporting evidence in admissible form.

[7]      Against  the  background  to  Mr  and  Mrs  Rogers’  application  that  I  have described above, and the background to the proceeding which I will outline in the further judgment, and the fact that Mr Rogers acknowledged that most matters that he was pressing did not require urgent determination, I am unpersuaded that Mr and

Mrs Rogers’ application should be given any further priority.  A full decision will be issued as soon as I have had an opportunity to complete the judgment.

[8]      However, I can deliver an interim judgment on one category of property subject to the Anton Piller orders.  Items 73, 109-140 and 143 in the schedule are described as Ultra helicopters or Ultra helicopter parts (“the Ultra items”).

[9]      There is, or appears to be, an agreement to sell the Ultra items to Keith George Baker of New South Wales, or to a company associated with Mr Baker.  (In spite of the adjournment granted to Mr and Mrs Rogers there is no document in evidence recording the terms of the agreement at the time it was made.)  Mr and Mrs Rogers have variously contended that the Ultra items were being sold by them as owners and by a company called Ultra Helicopters Inc (NZ) Limited as owner.  A deposit has been paid.  Mr and Mrs Rogers want to complete the sale as a matter of urgency.

[10]     TGR contends that it has an interest in the Ultra items sufficient to justify continuation of the Anton Piller orders.  But TGR does not oppose sale provided the sale proceeds are held in trust and subject to the injunction pending further Court order.  I am prepared to make an order to that effect.  Whether the proceeds are to be released to Mr and Mrs Rogers will be determined in my further judgment.

[11]     There is a 40 foot shipping container at 352 East Tamaki Road.  This does not appear to be in the TGR schedule of items subject to the injunction.  TGR does not seek to extend the injunction to it.  This container was apparently purchased by Bounty Corporation Limited, another company controlled by Mr and Mrs Rogers, for the purpose of shipping the Ultra items to Mr Baker, or as directed by Mr Baker, for the sale.

Result

a)       The Ultra items, being the items numbered 73, 109-140 and 143 in schedule A annexed to the affidavit of the defendants sworn on 23

September 2008, and any other items in that schedule which the receiver of the first plaintiff agrees in writing may be released from the order of this Court made on 14 August 2008 (and varied on 15 and

18 August 2008) for the purpose of sale of those items subject to the following conditions:

i)The sale shall be to Mr Keith George Baker or such other person or entity nominated by Mr Baker and acceptable to the receiver of the first plaintiff and the defendants.

ii)The items shall not be released until the sum of US$100,000, or such other sum as shall be agreed by Mr Baker, the receiver of the first plaintiff and the defendants has been paid into the trust account of LeeSalmonLong in the joint names of the first plaintiff,   Ultra   Helicopters   Inc   (NZ)   Limited   and   the defendants to be held in trust on interest bearing deposit pending further order of the Court.

b)The 40 foot shipping container (RWTU) CRXU932827 at the yard of Royal Wolf Trading New Zealand Limited at 352 East Tamaki Road, East Tamaki, is not subject to any order of the Court.

c)        Costs are reserved.