FFP TRUSTEE (NZ) LTD v PENG [2019] NZHC 3301

FFP TRUSTEE (NZ) LTD v PENG [2019] NZHC 3301

Court granted leave to proceed by originating application; ordered specific confidential affidavits and exhibits sealed and accessible only by further court order; directed under s 66 that the applicants, as trustees, have the power and had properly formed the view to forfeit the Schedule 2 assets (or proceeds) to the US Government pursuant to the US consent judgments, except in respect of two Viceroy (L'Ermitage) proceedings where a non‑consenting claimant exists and must be served; declined to make a Benjamin/no‑notice distribution order given known and potential claimants, lack of full information about potential claimants, and availability of trustee protection under s 69 and...

Citation
[2019] NZHC 3301
Parties
First Applicant: FFP Trustee (NZ) Limited; Second Applicant: FFP (Cayman) Limited; First Respondent: Low Hock Peng; Second Respondent: Goh Gaik Ewe; Third Respondent: Low May Lin; Fourth Respondent: Low Taek Szen; Fifth Respondent: Low Taek Jho
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 December 2019
Procedural Posture
Trusts Application Under Trustee Act 1956 (s 66) and Related Civil Asset Forfeiture Matters / Interim Judgment on Without‑notice Originating Application (directions Hearing)
Outcome
Interim judgment: granted leave to proceed by originating application; granted limited sealing/confidentiality for specified materials; directed trustees under s 66 they have power and acted properly to forfeit Schedule 2 assets to the US Government except for two specified Viceroy proceedings; declined to make...
Legal Topics
Benjamin Order, Section 66 Trustee Act Directions, Confidentiality Orders and Sealing, Forfeiture Pursuant to US Consent Judgments, Service and Notice to Potential Claimants
Trusts Civil Procedure Asset Forfeiture International Litigation Confidentiality and Privilege Benjamin Order Section 66 Trustee Act Directions Confidentiality Orders and Sealing +2 more

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Parties

FFP Trustee (NZ) Limited

First Applicant

FFP (Cayman) Limited

Second Applicant

Low Hock Peng

First Respondent

Goh Gaik Ewe

Second Respondent

Low May Lin

Third Respondent

Low Taek Szen

Fourth Respondent

Low Taek Jho

Fifth Respondent

Procedural Posture

Trusts Application Under Trustee Act 1956 (s 66) and Related Civil Asset Forfeiture Matters / Interim Judgment on Without‑notice Originating Application (directions Hearing)

Legal Issues

  1. 1 Whether leave should be granted to commence by originating application
  2. 2 Whether confidentiality/sealing orders over filed affidavits and exhibits were justified
  3. 3 Whether trustees have power and acted properly to forfeit trust assets pursuant to US consent judgments (s 66 Trustee Act and inherent jurisdiction)

Ratio Decidendi

Court granted leave to proceed by originating application; ordered specific confidential affidavits and exhibits sealed and accessible only by further court order; directed under s 66 that the applicants, as trustees, have the power and had properly formed the view to forfeit the Schedule 2 assets (or proceeds) to the US Government pursuant to the US consent judgments, except in respect of two Viceroy (L'Ermitage) proceedings where a non‑consenting claimant exists and must be served; declined to make a Benjamin/no‑notice distribution order given known and potential claimants, lack of full information about potential claimants, and availability of trustee protection under s 69 and...

Court Disposition

Interim judgment: granted leave to proceed by originating application; granted limited sealing/confidentiality for specified materials; directed trustees under s 66 they have power and acted properly to forfeit Schedule 2 assets to the US Government except for two specified Viceroy proceedings; declined to make...

Orders

  • Leave granted to commence the application by way of originating application under Part 19 of the High Court Rules
  • Confidential affidavits and specified confidential exhibits and memoranda (listed in judgment) ordered sealed and placed in a sealed envelope(s); not to be opened or copied except by order of a High Court Judge; 14 days' notice to applicants and respondents required for any access application