KASUYA v WALTON 18 LIMITED [2021] NZHC 2158

KASUYA v WALTON 18 LIMITED [2021] NZHC 2158

A without‑notice freezing order and ancillary disclosure orders were justified because the applicants established arguable claims for breach of warranty and negligence, identified assets transferred from Walton 18 to a related company Allum, and demonstrated a real risk of dissipation given the common director and transfer timeline; ancillary disclosure was necessary to identify assets and the applicants provided undertakings as to damages.

Citation
[2021] NZHC 2158
Parties
First Applicants: Lirio Yuriko Gimenso Kasuya; Kimiko Kasuya; Thomas Alan Mairs (trustees of the Kimiko Trust); Second Applicant: Chun-Chien Hsu; First Respondent: Walton 18 Limited; Second Respondent: Allum Trustees No. 1 Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
17 August 2021
Procedural Posture
Civil Freezing Order Application (interlocutory; Building Defects) / Interlocutory (without Notice)
Outcome
Without‑notice interlocutory application granted
Legal Topics
Freezing Order, Ancillary Disclosure, Voidable Transactions, Part 6 Property Law Act 2007, Warranties on Sale of Property, Negligence in Construction
Civil Procedure Injunctions Property Law Company Law Trusts Building and Construction Law Torts (negligence) Freezing Order +5 more

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Parties

Lirio Yuriko Gimenso Kasuya; Kimiko Kasuya; Thomas Alan Mairs (trustees of the Kimiko Trust)

First Applicants

Chun-Chien Hsu

Second Applicant

Walton 18 Limited

First Respondent

Allum Trustees No. 1 Limited

Second Respondent

Procedural Posture

Civil Freezing Order Application (interlocutory; Building Defects) / Interlocutory (without Notice)

Legal Issues

  1. 1 Whether applicants have an arguable case against Walton 18 for breach of warranty and negligence
  2. 2 Whether there is a real risk that Walton 18 will dissipate assets following transfers to Allum
  3. 3 Whether the Court may grant a freezing order and ancillary disclosure against assets held by or on behalf of a third party

Ratio Decidendi

A without‑notice freezing order and ancillary disclosure orders were justified because the applicants established arguable claims for breach of warranty and negligence, identified assets transferred from Walton 18 to a related company Allum, and demonstrated a real risk of dissipation given the common director and transfer timeline; ancillary disclosure was necessary to identify assets and the applicants provided undertakings as to damages.

Court Disposition

Without‑notice interlocutory application granted

Orders

  • Freezing order granted against Walton 18 Limited and Allum Trustees No. 1 Limited in the terms of the draft orders filed by the applicants restraining disposal of assets and requiring preservation of proceeds of sale to meet potential judgments
  • Ancillary disclosure orders granted under r 32.3 requiring the respondents to list assets and disclose information relevant to the freezing order