PHILIP LAWRENCE WHEELANS V ANDREW DU PLESSIS AS TRUSTEE OF THE HIPPO INVESTMENT TRUST HC WN CIV-2011-485-1621

PHILIP LAWRENCE WHEELANS V ANDREW DU PLESSIS AS TRUSTEE OF THE HIPPO INVESTMENT TRUST HC WN CIV-2011-485-1621

Defendants failed to establish that the plaintiffs withheld materially adverse information or pursued arguments that lacked merit; the 6 April and 25 July letters were not materially adverse (and 25 July was plausibly privileged); there was insufficient evidence to conclude plaintiffs lacked a genuine belief in risk of dissipation; accordingly r14.6 did not justify increased or indemnity costs and the application for increased costs was dismissed with costs reserved.

Citation
openlaw-ff3dc501_7edf_4dda_8bcf_575c1afb7865.pdf
Parties
First Plaintiff: Philip Lawrence Wheelans; Second Plaintiff: John William Knox; Third Plaintiff: Phil Wheelans Investments Limited; Fourth Plaintiff: Truck and Trailer Hire Limited; First Defendant: Andrew du Plessis as trustee of the Hippo Investment Trust; Second Defendant: The Hippo Investment Trust Limited as trustee of the Hippo; Third Defendant: Andrew du Plessis; Fourth Defendant: New Zealand Roading Solutions Limited; Fifth Defendant: Roading Solutions Distributors Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
12 March 2012
Procedural Posture
Interlocutory Application for Freezing and Preservation Orders (interim Injunction) and Subsequent Costs Application / Interlocutory — Costs Application Under High Court Rules R14.6 Following Earlier Interim Freezing/preservation Orders
Outcome
Application for increased costs dismissed; costs reserved until determination of the substantive proceeding.
Legal Topics
Freezing Orders, Preservation Orders, Interim Injunctions, Increased Costs, Without Prejudice Privilege, Waiver of Privilege, Misrepresentation, Dissipation of Assets
Civil Procedure Equity Costs Law Evidence Freezing Orders Preservation Orders Interim Injunctions Increased Costs +4 more

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Parties

Philip Lawrence Wheelans

First Plaintiff

John William Knox

Second Plaintiff

Phil Wheelans Investments Limited

Third Plaintiff

Truck and Trailer Hire Limited

Fourth Plaintiff

Andrew du Plessis as trustee of the Hippo Investment Trust

First Defendant

The Hippo Investment Trust Limited as trustee of the Hippo

Second Defendant

Andrew du Plessis

Third Defendant

New Zealand Roading Solutions Limited

Fourth Defendant

Roading Solutions Distributors Limited

Fifth Defendant

Procedural Posture

Interlocutory Application for Freezing and Preservation Orders (interim Injunction) and Subsequent Costs Application / Interlocutory — Costs Application Under High Court Rules R14.6 Following Earlier Interim Freezing/preservation Orders

Legal Issues

  1. 1 Whether plaintiffs failed to disclose materially adverse communications (letters dated 6 April and 25 July 2011) to the court when seeking freezing orders
  2. 2 Whether plaintiffs honestly believed there was a real risk defendants would dissipate assets such that freezing orders were justified
  3. 3 Whether the original freezing order application was oppressive or lacked merit so as to justify increased costs under r14.6

Ratio Decidendi

Defendants failed to establish that the plaintiffs withheld materially adverse information or pursued arguments that lacked merit; the 6 April and 25 July letters were not materially adverse (and 25 July was plausibly privileged); there was insufficient evidence to conclude plaintiffs lacked a genuine belief in risk of dissipation; accordingly r14.6 did not justify increased or indemnity costs and the application for increased costs was dismissed with costs reserved.

Court Disposition

Application for increased costs dismissed; costs reserved until determination of the substantive proceeding.

Orders

  • Application for increased costs under r14.6 dismissed
  • Costs reserved until after determination of the substantive matter