New Zealand Case Law: Decisions & Judgments

Topic

Equitable tracing

Legal area

Court

19 May 2021

HALIFAX NEW ZEALAND LTD v LOO [2021] NZHC 1113

Citation

[2021] NZHC 1113
Court

High Court

The Court held on the evidence that assets and client funds across Halifax AU and Halifax NZ were commingled and constituted a single deficient mixed fund; tracing was impracticable for most investors so pooling and a pari passu distribution of the pooled trust assets is appropriate; exceptions apply where holdings are demonstrably untainted (Category 3 and certain Category 5 clients) which may be transferred to claimants on proof and payment of processing fees; the appropriate date for quantification of entitlements is the New Zealand administration date of 27 November 2018; post-appointment…
4 Jun 2020

CONCRETE STRUCTURES LTD v NMHB LTD (IN LIQ) [2020] NZHC 1218

Citation

[2020] NZHC 1218
Court

High Court

The Court held that s261(2)(f) together with s266(2)(b) permit the Court to order a solicitor who has acted for the company to produce documents in that solicitor's possession or control even if those documents were generated while acting for a third‑party client, provided the documents relate to the affairs of the company; trust account records in issue are not privileged under s393 and production ordered where liquidators demonstrated reasonable necessity and the request was narrow and proportionate.
17 Feb 2017

JUN LI v 110 FORMOSA (NZ) LIMITED [2017] NZHC 174

Citation

[2017] NZHC 174
Court

High Court

The application to vary Lang J's 26 July 2016 consent orders was dismissed; on the pleaded facts and available affidavits the applicant has established a reasonably arguable equitable proprietary interest via tracing of NZD 4.8m into the purchased property and it is arguable the respondent received the benefit with knowledge of misappropriation, so the caveat should remain pending determination of the substantive proceeding.
17 Nov 2016

Intext Coatings Limited (in liq) v Deo [2016] NZHC 2754

Citation

[2016] NZHC 2754
Court

High Court

Court found the company entitled to recover the shareholder current account balance of $233,194 and additional post‑FYE2014 drawings of $342,224; both defendants jointly and severally liable for drawings except mortgage repayments which were the sole liability of Mrs Deo; equitable tracing into the property was refused because mortgage repayments are typically repayments of debt and backward tracing was not established on these facts; however equitable subrogation was available and the court imposed an equitable charge over the property in favour of the company for $77,862.19 ranking behind e…
11 Aug 2016

AMERICHIP, INC v DEAN [2016] NZHC 1864

Citation

[2016] NZHC 1864
Court

High Court

Defendants (employees/fiduciaries) breached their fiduciary duties by diverting and misrepresenting manufacturing and expense payments; diverted funds of US$12,929,347.02 are traceable into assets including the Mairangi Bay property; Ms Chen is liable for US$3,976,971.73 received and for dishonest assistance; constructive trust and equitable remedies apply and judgment including simple interest at 5% and costs is appropriate.
9 Oct 2015

TORBAY HOLDINGS LIMITED & ANOR v NAPIER & ORS [2015] NZHC 2477

Citation

[2015] NZAR 1839
Court

High Court

On the balance of probabilities the Court found Mr Napier misappropriated company funds and overpaid salaries; he was liable for money had and received and negligent in tax compliance. A proportionate assessment was adopted where records were deficient (only 30% of suspect payments could be justified), resulting in quantified recoverable sums. The Napier Family Trust was liable in knowing receipt by imputation of Mr Napier's knowledge. A constructive trust was declared over the Whangaripo Valley Road property to the extent funds were traceable into its acquisition and improvement.
1 Apr 2015

SION CONSULTANTS LIMITED (IN LIQUIDATION) v BASON [2015] NZHC 645

Citation

[2015] NZHC 645
Court

High Court

Where a director diverted company funds causing the company to be unable to meet statutory tax liabilities and thereby breached duties in ss131,133,135 and 137, the Court will, under s301, order repayment or contribution to compensate the company or its creditors; accordingly the defendant was ordered to repay or contribute $213,488.35 and judgment entered for the plaintiffs on specified causes of action.
23 Mar 2012

PUBLIC TRUST AS TRUSTEE OF THE ABRIE TRADING TRUST V ABRIE HC TAU CIV-2012-470-11

Citation

openlaw-5ac38338_12ed_44f4_9680_b5be85f5468b.pdf
Court

High Court

Defendant filed no compliant defence and plaintiff's evidence established that funds of the Abrie Trading Trust were diverted into the Abrie 01 Trust account controlled by the defendant; service in South Africa was valid under South African procedural law; accordingly summary judgment is entered for the plaintiff for $770,066.89 with interest under s 87 of the Judicature Act at 8.4% subject to clarification of the correct interest period and costs on a 2B basis.
26 Feb 2008

FLETCHER STEEL LIMITED V NAHAL CONTRACTORS LIMITED AND ORS HC AK CIV 2006-404-000498

Citation

openlaw-371c119f_9779_45d9_8b53_2e97ea2b3b92.pdf
Court

High Court

Court found on balance of evidence that extensive overbilling beyond the admitted false invoices occurred; accepted principal elements of plaintiff's forensic accounting (with quantified adjustments for supervisory hours and margins) and permitted equitable tracing of misappropriated funds into properties, imposing constructive trusts and awarding damages accordingly.