DAVIDSON ARMSTRONG & CAMPBELL SOLICITORS NOMINEE COMPANY LIMITED V CHRISTOPHER WILLIAM MORRISON HC NAP CIV 2008-441-276

DAVIDSON ARMSTRONG & CAMPBELL SOLICITORS NOMINEE COMPANY LIMITED V CHRISTOPHER WILLIAM MORRISON HC NAP CIV 2008-441-276

The applicant failed to discharge the onus under r 570 to show the share portfolio was owned by third parties; the available evidence (including broking records, prior affidavits and conduct) established the defendant as the beneficial owner; therefore the charging order over the shares remains and the stay is refused.

Source-derived case information.

Citation
openlaw-88d58dc1_0a65_48b9_9ca2_4009dccc0e0b.pdf
Parties
Plaintiff/judgment Creditor: Davidson Armstrong & Campbell Solicitors Nominee Company Limited; Defendant/judgment Debtor: Christopher William Morrison
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 October 2008
Procedural Posture
Civil Enforcement Proceedings (charging Order and Stay) / Application to Discharge Charging Order and Application for Stay of Execution (heard on Application)
Outcome
Application to discharge charging order dismissed; charging order remains in force as to the share portfolio; application for stay of execution dismissed; costs awarded to plaintiff
Legal Topics
Charging Order, Stay of Execution, Third‑party Claims, Onus of Proof Under R 570, Agency and Beneficial Ownership
Civil Procedure Enforcement Property Law Trusts Charging Order Stay of Execution Third‑party Claims Onus of Proof Under R 570 +1 more

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Parties

Davidson Armstrong & Campbell Solicitors Nominee Company Limited

Plaintiff/judgment Creditor

Christopher William Morrison

Defendant/judgment Debtor

Procedural Posture

Civil Enforcement Proceedings (charging Order and Stay) / Application to Discharge Charging Order and Application for Stay of Execution (heard on Application)

Legal Issues

  1. 1 Whether applicant had standing to apply under r 570 High Court Rules
  2. 2 Whether the share portfolio was beneficially owned by the defendant or by third parties/trusts
  3. 3 Whether the applicant discharged the onus of proof under r 570 to rescind the charging order

Ratio Decidendi

The applicant failed to discharge the onus under r 570 to show the share portfolio was owned by third parties; the available evidence (including broking records, prior affidavits and conduct) established the defendant as the beneficial owner; therefore the charging order over the shares remains and the stay is refused.

Court Disposition

Application to discharge charging order dismissed; charging order remains in force as to the share portfolio; application for stay of execution dismissed; costs awarded to plaintiff

Orders

  • Charging order absolute dated 18 September 2008 remains in force as to the defendant's share portfolio
  • Application by Christopher William Morrison to discharge the charging order dismissed