BGT DEVELOPMENTS LIMITED v HEWSON [2020] NZHC 2818

BGT DEVELOPMENTS LIMITED v HEWSON [2020] NZHC 2818

Applicant demonstrated a tenable cause of action based on the Heads of Agreement and supporting affidavit evidence, showed a real risk of dissipation of identifiable proceeds (trustees moved overseas and no other real property located), and provided an undertaking as to damages; accordingly an interim freezing order...

Source-derived case information.

Citation
[2020] NZHC 2818
Parties
Applicant: BGT Developments Limited; First Respondent: Steven Paul Hewson; First Respondent: Victoria Hewson; First Respondent: FL Trustees 2013 Limited as Trustees of the Hewson Family Trust; Second Respondent: Fenton McFadden
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 October 2020
Procedural Posture
Interim Freezing Order Application (civil, Urgent) / Interim Judgment Granting Without‑notice Freezing Order in Part; Further Orders to Proceed on Notice
Outcome
Interim freezing order granted in part: respondents prohibited from selling, transferring or otherwise distributing the proceeds of the Property sale until further order or final determination, capped at the value of the applicant's claim; other relief sought without notice declined and to proceed on notice to the...
Legal Topics
Freezing Order, Mareva Injunction, Sale of Land Dispute, Heads of Agreement, Service of Process, Undertaking as to Damages
Property Law Trusts Equity Civil Procedure Remedies Freezing Order Mareva Injunction Sale of Land Dispute +3 more

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Parties

BGT Developments Limited

Applicant

Steven Paul Hewson

First Respondent

Victoria Hewson

First Respondent

FL Trustees 2013 Limited as Trustees of the Hewson Family Trust

First Respondent

Fenton McFadden

Second Respondent

Procedural Posture

Interim Freezing Order Application (civil, Urgent) / Interim Judgment Granting Without‑notice Freezing Order in Part; Further Orders to Proceed on Notice

Legal Issues

  1. 1 Whether applicant has a good arguable case under High Court Rules r 32.5 to justify a freezing order
  2. 2 Whether proceeds of a third party sale are held by or within control of respondents and at risk of dissipation
  3. 3 Whether balance of convenience and interests of justice favour interim relief

Ratio Decidendi

Applicant demonstrated a tenable cause of action based on the Heads of Agreement and supporting affidavit evidence, showed a real risk of dissipation of identifiable proceeds (trustees moved overseas and no other real property located), and provided an undertaking as to damages; accordingly an interim freezing order prohibiting respondents from disposing of the proceeds up to the value of the applicant's claim was justified, while more intrusive disclosure or third‑party orders were deferred to on‑notice proceedings.

Court Disposition

Interim freezing order granted in part: respondents prohibited from selling, transferring or otherwise distributing the proceeds of the Property sale until further order or final determination, capped at the value of the applicant's claim; other relief sought without notice declined and to proceed on notice to the...

Orders

  • Prohibition on respondents selling, transferring or otherwise distributing the Proceeds of sale of 56F Plummers Point Road, Whakamarama until further Order or final determination, capped at the value of the applicant's claim
  • Other orders seeking disclosure from second respondent and freezing of bank accounts refused without notice and to proceed on notice to the second respondent