Legal Research
Cases
Virtual Spectator Ltd v Rothlander

Virtual Spectator Ltd v Rothlander

Case [2016] NZHC 499 30 March 2016

Discovery & Disclosure

Property Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV-2011-404-858

[2016] NZHC 499

BETWEEN
VIRTUAL SPECTATOR LIMITED

Plaintiff

AND

STEPHAN MARK ROTHLANDER AND

ANN ELIZABETH CONBOY

Defendants

Hearing: 2 and 3 March 2016

Appearances:

H M McKee for Defendants in support K P McDonald for Plaintiff to oppose

Judgment:

30 March 2016

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 30 March 2016 at 4:00pm
pursuant to Rule 11.5 of the High Court Rules

…………………………………………………….
Registrar/Deputy Registrar

Solicitors:
Glaister Ennor, Auckland, for Plaintiff
Kevin McDonald & Associates, Auckland, for Defendants

VIRTUAL SPECTATOR LIMITED v ROTHLANDER AND CONBOY [2016] NZHC 499 [30 March 2016]

[1] The defendants apply to remove caveat 8591429.1 lodged by Virtual Spectator International Ltd against the title to their Auckland home and for an order suppressing information that might identify them. They say that it is now clear that the caveator does not have a caveatable interest in the property, it delayed in issuing any court proceedings to uphold the interest claimed in the caveat and it agreed to withdraw the caveat.

[2] Virtual Spectator International Ltd employed Mr Rothlander as chief operating officer from June 2003 to March 2010. It alleged that he embezzled its money. On 5 November 2010 it lodged a caveat against the defendants’ home claiming this interest:

An equitable interest in the land comprised in the composite computer register NA116C/838 (the land) as beneficiary of an implied trust created on or about 1 May 2010 arising as a result of a breach of duty owed to the caveator (as employer) by Stephan Mark Rothlander acting in a fiduciary capacity as employee by the conversion and application of monies belonging to the caveator for the benefit of the registered proprietors, Stephan Mark Rothlander and Ann Elizabeth Conboy, by applying such monies towards their interest in and/or directly or indirectly benefiting the interest of the registered proprietors in the freehold of the land.

[3] In early 2011 Virtual Spectator International Ltd applied for an order that the caveat not lapse. On 24 February 2011, Associate Judge Doogue made an interim order that the caveat not lapse. On 31 March 2011 he made a further order staying proceedings until further order of the court and reserving leave to Virtual Spectator International Ltd to have the matter re-listed if necessary.

[4] The background to the stay order is that the police had laid criminal charges against Mr Rothlander and another employee, Mr Bruno Jardim. Mr Rothlander sought the stay of any civil proceedings until his criminal proceedings had been determined so as to preserve his fair trial rights under the New Zealand Bill of Rights Act 1990. The criminal trial took place in the Auckland District Court in August and September 2013. The trial judge made rulings under s 347 of the Crimes Act 1961 withdrawing all but one of the charges against Mr Rothlander. On the remaining charge the jury acquitted Mr Rothlander.

[5] In 2012 a number 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.

Continue reading Virtual Spectator Ltd v Rothlander

Details

AGLC: Virtual Spectator Ltd v Rothlander [2016] NZHC 499
Case: [2016] NZHC 499
Decision Date: 30 March 2016

CaseChat Overview and Summary

Virtual Spectator Limited sought to remove a caveat against the property of Stephan Mark Rothlander and Ann Elizabeth Conboy. The defendants argued that Virtual Spectator Limited had agreed to remove the caveat once the Rothlanders returned certain property held by the police, which they had done. The court found that a binding contract existed for the removal of the caveat, which Virtual Spectator Limited was required to perform upon the return of the property. The court also found that Virtual Spectator Limited had not established a prima facie case that the invoices at the heart of the caveat were fictitious. The court granted the defendants' application to remove the caveat and dismissed their application for suppression of information identifying them.

Orders