TEAM BARRY LIMITED AND ORS V KEMP AND ORS HC AK CIV 2003-404-5593

TEAM BARRY LIMITED AND ORS V KEMP AND ORS HC AK CIV 2003-404-5593

The Court allowed Tuaman to draw reasonable legal costs and approved earlier invoices because Tua's proprietary claims to the fund were contestable and not demonstrably strong at interlocutory stage, substantial parts of the fund derived from assets in Tuaman's name (Pakiri) where an express trust claim had been...

Source-derived case information.

Citation
openlaw-e7470fed_d92a_4343_b6bc_6aed9d253336.pdf
Parties
First Plaintiff: Team Barry Limited; Second Plaintiff: Tuaman Inc Limited; Third Plaintiff: Martin Pugh; Fourth Plaintiff: Kevin Barry; Second Defendant: Luke Andrew Bowell Kemp; Third Defendant: Mafaufau Sita (aka David Tua); Counterclaim Defendant: Sally Fergusson Cross and Mark Gill (as trustees of The Baron and Lunar Trust); Interested Party / Sub Mortgagee: Midland Funds Management Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
10 February 2009
Procedural Posture
Civil Dispute Involving Claims to Frozen Assets, Trusts, and Company Disputes / Interlocutory Application for Payment of Legal and Expert Costs From Frozen Funds (hearing and Directions)
Outcome
Application granted in part: Tuaman may meet reasonable legal and approved expert costs from the frozen fund subject to conditions and without prejudicing Midland's prior rights.
Legal Topics
Frozen Funds, Payment of Legal Costs From Restrained Assets, Express Trust, Resulting Trust, Constructive Trust, Tracing, Rescission of Contract
Trusts and Equity Company Law Civil Procedure Costs Injunctions (mareva) Frozen Funds Payment of Legal Costs From Restrained Assets Express Trust +4 more

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Parties

Team Barry Limited

First Plaintiff

Tuaman Inc Limited

Second Plaintiff

Martin Pugh

Third Plaintiff

Kevin Barry

Fourth Plaintiff

Luke Andrew Bowell Kemp

Second Defendant

Mafaufau Sita (aka David Tua)

Third Defendant

Sally Fergusson Cross and Mark Gill (as trustees of The Baron and Lunar Trust)

Counterclaim Defendant

Midland Funds Management Limited

Interested Party / Sub Mortgagee

Procedural Posture

Civil Dispute Involving Claims to Frozen Assets, Trusts, and Company Disputes / Interlocutory Application for Payment of Legal and Expert Costs From Frozen Funds (hearing and Directions)

Legal Issues

  1. 1 Whether the frozen fund is a trust fund belonging to the defendant (Tua) or property of the company (Tuaman)
  2. 2 Whether Tuaman may draw reasonable legal and expert costs from the frozen fund while claims are contested
  3. 3 What limits and conditions the Court should impose on any payment from the fund

Ratio Decidendi

The Court allowed Tuaman to draw reasonable legal costs and approved earlier invoices because Tua's proprietary claims to the fund were contestable and not demonstrably strong at interlocutory stage, substantial parts of the fund derived from assets in Tuaman's name (Pakiri) where an express trust claim had been dismissed by Williams J, and provisional accounting indicated available sums; access is permitted subject to court approval of invoices and estimates, limits on expert costs, and Midland's pre-existing security rights.

Court Disposition

Application granted in part: Tuaman may meet reasonable legal and approved expert costs from the frozen fund subject to conditions and without prejudicing Midland's prior rights.

Orders

  • Invoices of Gibson Sheat and Mr J D Haigh annexed to Haigh affidavit sworn 16 April 2008 to be paid from the fund
  • Gibson Sheat and Mr Chisholm to submit particularised invoices for further costs to date for Court approval and, as approved, those invoices to be paid from the fund