Whangarei Heads Enterprises Limited v Robinson

[2012] NZHC 544

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-185 [2012] NZHC 544

IN THE MATTER OF     an application to arrest and imprison absconding debtor

BETWEEN  WHANGAREI HEADS ENTERPRISES LIMITED

Applicant

ANDJOHN CLIFFORD WALTER ROBINSON Respondent

Hearing:         22 March 2012

Appearances: S Ebert for the Applicant via telephone link

Respondent in person

Judgment:      22 March 2012

Reasons:        26 March 2012

REASONS FOR JUDGMENT OF WOODHOUSE J

(Mr Robinson’s application for release of passport : directions)

Solicitors:

Mr S R Ebert, Billings, Solicitors, New Plymouth

Mr J Robinson, Port Vila, Vanuatu

WHANGAREI HEADS ENTERPRISES LIMITED V ROBINSON HC WHA CIV-2012-488-185 [22 March

2012]

[1]      On 21 March 2012, on very short notice, the applicant applied for an order that Mr Robinson’s arrest on grounds set out in the affidavit of Victor Leonard Freakley sworn on 21 March 2012.   An order was made and Mr Robinson was arrested and held in custody overnight.

[2]      The following morning I granted a further application of the applicant for an order that Mr Robinson surrender his passport and that it be detained on terms.

[3]      On the afternoon of 22 March 2012 Mr Robinson filed an application for release of his passport.  I convened an urgent hearing, with the applicant’s solicitor, Mr Ebert, on telephone.

[4]      In the course of the hearing Mr Robinson acknowledged that the equipment in question is the property of Whangarei Heads Enterprises Limited.  He said that Mr Freakley knew where the equipment was.  He said that he was, in any event, willing to  disclose  the  whereabouts  of  the  equipment  and  allow  it  to  be  returned  to Whangarei Heads Enterprises Limited, provided it was not used for the purposes of the company’s hireage business.  In the event I determined that such a condition was not appropriate as Mr Robinson acknowledged that the equipment is the property of the applicant company and there is an undertaking as to damages.

[5]      In  the  course of further  discussion  Mr Robinson  disclosed the addresses where the property had been put or left by him.  He identified three properties.  In respect of each of these:

(a)      Mr Robinson said that the loader was at a property owned by Roddy McGregor.  Mr Ebert advised that earlier that day Mr Freakley went to the property, but Mr McGregor would not allow the loader to be picked up without authority from Mr Robinson.   It was agreed that this  could  be  dealt  with  by  my  issuing  an  appropriate  minute recording Mr Robinson’s acknowledgement that this loader (and the other equipment) is owned by the company.

(b)Mr Robinson said the John Deer tractor was at the back of a property owned by John Dimond at Ody Road, Parua Bay, Whangarei Heads.

(c)      Mr  Robinson  said  the  small  digger  and  wood  splitter  were  at  a property owned by Mr Robinson’s daughter and son-in-law, Joan and Caleb Piggot.  Mr Robinson was unsure of the exact address.  In the course of the hearing he telephoned his son-in-law who provided the address.   Mr Robinson advised Mr Piggot that the digger and wood spliter were to be released.  Mr Piggot offered to take the equipment to the premises of Whangarei Heads Enterprises Limited

[6]      Mr Ebert submitted that the passport should not be released until it had been confirmed that all of the equipment was at the locations identified.  I did not consider that that was a basis for Mr Robinson’s passport to be detained any further.  There were no further grounds for detention under s 55 of the Judicature Act 1908 as the evidence required from Mr Robinson had now been provided.   Retention of the passport was in substitution for continued detention of Mr Robinson under s 55.  Mr Robinson nevertheless agreed, at Mr Ebert’s request, to state on oath that the equipment was at the addresses that he had identified, and he did so

[7]      An order was then made for release of the passport and delivery of it to Mr

Robinson.  I understand that that was done later that day or in the early evening.

[8]      There is need for timetabling of further steps to be taken for disposal of this proceeding.  In that regard there is a question as to whether the applicant wishes to proceed with a substantive claim.  In addition, copies of all documents filed by the applicant in support of the original application, and subsequent variations, should be served on Mr Robinson. Accordingly, I make the following directions.

(a)      Copies of the documents filed to date by the applicant are to be served on  the  respondent  by  4  May  2012.    In  that  regard  I  note  Mr Robinson’s advice in his application for release of the passport that he is returning to New Zealand on 22 April 2012.  Mr Robinson is also to be served with a copy of this minute.

(b)The applicant is to file a memorandum advising whether the applicant intends to proceed with a substantive claim and, if so, when it is anticipated   that   that   claim   will   be   filed   and   served.      This memorandum should also be served on Mr Robinson.

[9]      The  proceeding  is  adjourned  to  a  telephone  conference  before  me  on

Tuesday 22 May 2012 at 9:00 am.  The parties have leave to apply for an earlier conference if the need arises.

Woodhouse J