DAVIDSON ARMSTRONG & CAMPBELL SOLICITORS NOMINEE COMPANY LTD V CHRISTOPHER WILLIAM MORRISON HC NAP CIV 2008-441-276
The Court discharged the charging order as to 83,263 Rialto Energy shares (First NZ Capital) conceded by the judgment creditor and, on the evidence (annual accounts and affidavits), discharged the charging order as to the $153,450 parcel of First NZ Capital shares beneficially owned by the C.W. Morrison Family Trust; the Court refused discharge for shares said to be owned by the C.W. Morrison (1996) Business Trust because applicants failed to meet the onus of proof and their evidence conflicted with unchallenged prior statements by the independent trustee; the remaining charged shares were ordered sold under the Registrar's control through nominated brokers with proceeds to the Registrar...
- Citation
- openlaw-a08b0653_dc03_4430_966e_ebb3f482491e.pdf
- Parties
- Judgment Creditor: Davidson Armstrong & Campbell Solicitors Nominee Company Ltd; Judgment Debtor: Christopher William Morrison; Third Party Applicant: Gregory Michael Morrison; Third Party Applicant: Andrea Lenore Winiata
- Court
- High Court
- Jurisdiction
- New Zealand
- Judgment Date
- 17 December 2008
- Procedural Posture
- Civil Enforcement of Judgment (charging Order) / Interlocutory Applications to Discharge Charging Order and for Sale of Charged Shares
- Outcome
- Partial discharge of charging order as to specified parcels; sale ordered of remaining charged shares under Registrar control
- Legal Topics
- Charging Order, Third Party Claim to Charged Property, Sale of Charged Assets, Onus of Proof in Rescission Applications, Beneficial Ownership of Trust Assets
Case Brief
Summary, issues, holding and outcome
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Parties
Davidson Armstrong & Campbell Solicitors Nominee Company Ltd
Judgment Creditor
Christopher William Morrison
Judgment Debtor
Gregory Michael Morrison
Third Party Applicant
Andrea Lenore Winiata
Third Party Applicant
Procedural Posture
Civil Enforcement of Judgment (charging Order) / Interlocutory Applications to Discharge Charging Order and for Sale of Charged Shares
Legal Issues
- 1 Whether third parties proved beneficial ownership such that the charging order should be discharged as to specified shares
- 2 Whether the charging order should be enforced by sale of the remaining charged shares
- 3 What evidence suffices under rr 570 and 571 High Court Rules to discharge a charging order
Ratio Decidendi
The Court discharged the charging order as to 83,263 Rialto Energy shares (First NZ Capital) conceded by the judgment creditor and, on the evidence (annual accounts and affidavits), discharged the charging order as to the $153,450 parcel of First NZ Capital shares beneficially owned by the C.W. Morrison Family Trust; the Court refused discharge for shares said to be owned by the C.W. Morrison (1996) Business Trust because applicants failed to meet the onus of proof and their evidence conflicted with unchallenged prior statements by the independent trustee; the remaining charged shares were ordered sold under the Registrar's control through nominated brokers with proceeds to the Registrar...
Court Disposition
Partial discharge of charging order as to specified parcels; sale ordered of remaining charged shares under Registrar control
Orders
- Discharge Charging Order dated 18 September 2008 as to 83,263 Rialto Energy shares held through First NZ Capital in favour of Andrea Lenore Winiata
- Discharge Charging Order dated 18 September 2008 as to that portion of the First NZ Capital share portfolio beneficially owned by the C.W. Morrison Family Trust represented by shares with market value $153,450 per Note 11 of the Trust's 2008 annual accounts
Full Case Text
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