MADSEN-RIES V THOMPSON HC AK CIV-2010-404-007159

MADSEN-RIES V THOMPSON HC AK CIV-2010-404-007159

Service was proven because process server's evidence was credible and the defendant's documentary alibi (boarding pass) was shown to be forged; Kiwi House was insolvent at the time of the 19 June 2008 disposition and the transfer was effected without reasonably equivalent value; defendant's explanations (memory loss, constructive trust) lacked credible corroboration or legal effect against registered title; consequently a vesting order under s348 was justified and entered.

Citation
openlaw-21f201b5_e34f_446c_af41_fcf45a8e90f4.pdf
Parties
Plaintiff (liquidator): Vivien Judith Madsen-Ries; Plaintiff (liquidator): David Stuart Vance; First Defendant: Jolyon Brendan Geordie Thompson; Second Defendant: Philip Ian D'Ath
Court
High Court
Jurisdiction
New Zealand
Judgment Date
6 June 2012
Procedural Posture
Application Under Property Law Act 2007 S348 in Liquidation Proceedings / Judgment on Application for Formal Proof (default/formal Proof Hearing) Judgment Entered
Outcome
Judgment for plaintiffs; vesting order under s348 of the Property Law Act 2007 in favour of Kiwi House Ltd (in liquidation); costs awarded to plaintiffs
Legal Topics
Voidable Dispositions (part 6 Subpart 6), Vesting Order S348, Service of Process, Summary Judgment/formal Proof, Constructive Trust, Statutory Demand/insolvency
Property Law Insolvency Law Trusts Law Civil Procedure Voidable Dispositions (part 6 Subpart 6) Vesting Order S348 Service of Process Summary Judgment/formal Proof +2 more

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Parties

Vivien Judith Madsen-Ries

Plaintiff (liquidator)

David Stuart Vance

Plaintiff (liquidator)

Jolyon Brendan Geordie Thompson

First Defendant

Philip Ian D'Ath

Second Defendant

Procedural Posture

Application Under Property Law Act 2007 S348 in Liquidation Proceedings / Judgment on Application for Formal Proof (default/formal Proof Hearing) Judgment Entered

Legal Issues

  1. 1 Whether defendant was properly served with the proceedings
  2. 2 Whether Kiwi House was a debtor insolvent at time of disposition (s346(2))
  3. 3 Whether the 19 June 2008 transfer was made without reasonably equivalent value in exchange

Ratio Decidendi

Service was proven because process server's evidence was credible and the defendant's documentary alibi (boarding pass) was shown to be forged; Kiwi House was insolvent at the time of the 19 June 2008 disposition and the transfer was effected without reasonably equivalent value; defendant's explanations (memory loss, constructive trust) lacked credible corroboration or legal effect against registered title; consequently a vesting order under s348 was justified and entered.

Court Disposition

Judgment for plaintiffs; vesting order under s348 of the Property Law Act 2007 in favour of Kiwi House Ltd (in liquidation); costs awarded to plaintiffs

Orders

  • Order under s348 Property Law Act 2007 vesting land at 194 Lake Road, Northcote, Auckland (Certificate of Title NA2A/495) in Kiwi House Ltd (in liquidation)
  • Leave reserved to parties to apply for further elaboration or change to the order