Van Heeren v Kidd - [2015] NZCA 574

IN THE COURT OF APPEAL OF NEW ZEALAND

CA247/2015
[2015] NZCA 574

BETWEEN	ALEXANDER PIETER VAN HEEREN Appellant
AND	MICHAEL DAVID KIDD Respondent

Hearing:	23 November 2015
Court:	Harrison, Stevens and Wild JJ
Counsel:	B D Gray QC and A J Wakeman for Appellant S J Mills QC, B O’Callahan and E J H Morrison for Respondent
Judgment:	27 November 2015 at 10 am

JUDGMENT OF THE COURT

A The application for a stay of execution is dismissed.

BThe appellant is to pay the respondent costs as for a standard application for leave calculated on a band A basis together with usual disbursements.

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REASONS OF THE COURT

(Given by Harrison J)

Introduction

In 1996 the respondent, Michael Kidd, issued a proceeding in the High Court of New Zealand against the appellant, Alexander van Heeren. Mr Kidd claimed that the parties had been equal partners in a worldwide enterprise which had operated principally from South Africa; and that Mr van Heeren had misappropriated partnership funds to acquire valuable assets in New Zealand. He sought various remedies including the taking of accounts. Mr van Heeren did not file a statement of defence but appeared under protest to jurisdiction.
Mr van Heeren applied to have Mr Kidd’s proceeding struck out or stayed. His opposition was based on a deed of indemnity signed by Mr Kidd in Randburg, South Africa, in January 1991. Mr van Heeren claimed that it was an absolute answer to Mr Kidd’s claim because it provided for a full and final settlement of all issues between the parties.
In 1998 the High Court stayed Mr Kidd’s proceeding until such time as a Court of competent jurisdiction in South Africa upheld his challenge to the validity of the indemnity.[1] Many years later, in May 2013, Justice Satchwell of the South Gauteng High Court of South Africa declared the indemnity was void and of no force and effect.[2] The Judge was satisfied that Mr van Heeren had made a number of misrepresentations which induced Mr Kidd to sign the indemnity. While he was represented by counsel at the trial in South Africa, Mr van Heeren did not give evidence in his defence or appeal against Satchwell J’s judgment.
[1]Kidd v van Heeren [1998] 1 NZLR 324 (HC) at 342.
[2]Kidd v van Heeren South Gauteng HC 27973/1998, 21 May 2013.
In the course of her judgment Satchwell J found that Messrs Kidd and van Heeren were partners in a joint enterprise which yielded substantial profits from steel trading; and that the partnership entity acquired assets throughout the world including valuable real estate and other property in New Zealand.

High Court

The effect of the South African judgment was to set aside the stay of Mr Kidd’s proceeding made in New Zealand in 1998. In reliance on Satchwell J’s judgment, Mr Kidd revived that proceeding and his application for remedies against Mr van Heeren including a taking of accounts.
Following a defended hearing, Fogarty J delivered a comprehensive judgment on…

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 Van Heeren v Kidd

Details

AGLC: Van Heeren v Kidd [2015] NZCA 574
Case: [2015] NZCA 574
Decision Date: 27 November 2015 at 10 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an appeal by Alexander van Heeren against the High Court's decision in Kidd v van Heeren. Michael Kidd had sued van Heeren for misappropriation of partnership funds to acquire valuable assets in New Zealand. Van Heeren argued that a deed of indemnity signed by Kidd was a full and final settlement of all issues between the parties. The High Court stayed Kidd's proceeding until a competent South African court upheld Kidd's challenge to the indemnity's validity. In 2013, the South Gauteng High Court of South Africa declared the indemnity void. The High Court then ordered van Heeren to account for the partnership's assets and pay Kidd USD25 million. Van Heeren appealed the High Court's decision.

The legal issues the Court of Appeal had to decide included whether the Court should exercise its discretion to grant a stay of execution of the High Court orders pending the determination of van Heeren's appeal. Van Heeren argued that the legal issues were novel and complex, the merits of the appeal were strong, and without a stay his rights would be rendered nugatory.

The Court of Appeal disagreed with van Heeren's argument and dismissed his application for a stay. The Court held that Kidd was entitled to the benefits of his favourable judgment, even if its terms were unprecedented in New Zealand. The Court also found that the High Court's orders would not necessarily require van Heeren to dismantle the trusts which owned relevant assets. The dominant factor was that Kidd, at the age of 74, was entitled to the fruits of his judgment without having to await the result of further appeals. The interests of justice did not favour granting a stay pending the determination of van Heeren's appeal.

As a result, van Heeren's application for a stay of execution was dismissed. Van Heeren was ordered to pay Kidd's costs as for a standard application for leave calculated on a band A basis together with usual disbursements.

Orders