MOSES v STARK [2023] NZHC 427

MOSES v STARK [2023] NZHC 427

Associate Judges have jurisdiction to hear interlocutory applications for appointment of interim receivers. However, on the facts there was insufficient evidence of imminent risk of dissipation or damage to partnership assets to justify appointing an interim receiver: Family Court proceedings might resolve the attorney issue, the partnership bank account appeared frozen, the expert report was inconclusive, there was delay in seeking relief, and interlocutory appointment would impose costs; accordingly the application for an interim receiver was declined with leave to reapply if circumstances change.

Citation
[2023] NZHC 427
Parties
Plaintiff; Sole Independent Executor and Trustee of the Estate of George John Stark: Juliet Anna Moses; First Defendant; Partner in GJ & EM Stark Partnership: Eileen Mary Stark; Second Defendant; Attorney for Eileen Mary Stark in Relation to Property; Partner (through Roles): Keith Richard Stark
Court
High Court
Jurisdiction
New Zealand
Judgment Date
7 March 2023
Procedural Posture
Partnership Dissolution; Interlocutory Application for Appointment of Interim Receiver Under S 73 Partnership Law Act 2019 / Interlocutory — Application Determined on the Papers
Outcome
Application for appointment of an interim receiver declined at this stage; leave to reapply reserved; case management directions made
Legal Topics
Dissolution of Partnership, Appointment of Interim Receiver, Court Inherent Jurisdiction, Partner Incapacity and Attorney Issues, Interlocutory Relief and Case Management
Partnership Law Equity — Receivership Estate Administration Capacity and Power of Attorney Civil Procedure Dissolution of Partnership Appointment of Interim Receiver Court Inherent Jurisdiction +2 more

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Parties

Juliet Anna Moses

Plaintiff; Sole Independent Executor and Trustee of the Estate of George John Stark

Eileen Mary Stark

First Defendant; Partner in GJ & EM Stark Partnership

Keith Richard Stark

Second Defendant; Attorney for Eileen Mary Stark in Relation to Property; Partner (through Roles)

Procedural Posture

Partnership Dissolution; Interlocutory Application for Appointment of Interim Receiver Under S 73 Partnership Law Act 2019 / Interlocutory — Application Determined on the Papers

Legal Issues

  1. 1 Whether Associate Judges have jurisdiction to appoint interim receivers
  2. 2 Whether the High Court has jurisdiction to appoint an interim receiver over partnership assets in the circumstances
  3. 3 Whether an interim receiver should be appointed to protect partnership assets pending determination of dissolution under s72/73 Partnership Law Act 2019

Ratio Decidendi

Associate Judges have jurisdiction to hear interlocutory applications for appointment of interim receivers. However, on the facts there was insufficient evidence of imminent risk of dissipation or damage to partnership assets to justify appointing an interim receiver: Family Court proceedings might resolve the attorney issue, the partnership bank account appeared frozen, the expert report was inconclusive, there was delay in seeking relief, and interlocutory appointment would impose costs; accordingly the application for an interim receiver was declined with leave to reapply if circumstances change.

Court Disposition

Application for appointment of an interim receiver declined at this stage; leave to reapply reserved; case management directions made

Orders

  • Estate's application for appointment of an interim receiver is declined at this stage; leave reserved to re‑apply if circumstances warrant such as risk of dissipation
  • A case management conference by telephone to be allocated on 15 or 17 March 2023; memoranda (preferably joint) to be filed addressing: current progress in the Family Court proceedings; whether Keith intends to defend; if defending, whether a judicial settlement conference is required and proposed further directions;...