TGR Helicorp Limited (in rec) v Rogers HC Auckland CIV 2008-404-004109 [2011] NZHC 177 (3 March 2011)

Last Updated: 28 May 2011

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV 2008-404-004109}

BETWEEN TGR HELICORP LIMITED (IN RECEIVERSHIP)

Plaintiff

AND BASTIA INVESTMENTS LIMITED, GEORGE PETER GLAISTER & SONIA LEE GLAISTER AND PETER MARSDEN BARRY, ANDREA CAROL BARRY & DAVID MARSDEN BARRY Second Plaintiffs

AND GLENDA FRANCES ROGERS AND TREVOR VICEMAR ROGERS Defendants

Hearing: 3 March 2011

Counsel: M Heard for the Plaintiffs

P Webb and A J Kingston for the Defendants

Judgment: 3 March 2011

_{ORAL JUDGMENT OF WOODHOUSE J}

Solicitors:

Mr D Salmon / Mr M Heard , LeeSalmonLong, Solicitors, Auckland

Mr P Webb, Barrister, Manukau

Mr B Webb, Webb Morice, Solicitors, Pukekohe

TGR HELICORP LIMITED (IN RECEIVERSHIP) V ROGERS AND ROGERS HC AK CIV 2008-404-004109

3 March 2011

[1] This further hearing has taken place following Mr Rogers’ committal to prison for one month for the reasons recorded in the earlier judgment. The primary purpose of this hearing was to consider whether there had been compliance with the orders set out in my substantive judgment of 15 December 2001 at paragraph [137]. For the purpose of this hearing I have heard submissions from Mr Webb on behalf of Mr and Mrs Rogers and from Mr Heard, on behalf of the first plaintiff.

[2] There has been no compliance. And that is a failure to comply by Mrs Rogers as well as Mr Rogers. What the Court must now consider is whether further sanctions should be imposed to seek to secure compliance. That was at the forefront of Mr Webb’s submission.

[3] In the course of that submission Mr Webb referred to the fact that both Mr and Mrs Rogers continue to maintain what they maintained at the original substantive hearing and that is that they do not have possession of the property in question. My judgment came to the opposite conclusion for all of the reasons set out in that judgment. The result of this position therefore is the continued direct challenge to the Court. Mr Webb described this at one point as a Mexican stand-off. I understand the reason why that expression was used and I am not intending to be critical of Mr Webb, but it is not an apt description of the situation we have here in respect of Court orders, which are made to be complied with.

[4] Having said that I wish to make clear at this point that I am not intending to send either Mr or Mrs Rogers to prison today. What I intend to do is to give them a further opportunity following this hearing, and having heard what has been said in Court today, to comply with the Court orders. And I repeat, for the purpose of emphasis, that this is to give an opportunity to Mrs Rogers as well as to Mr Rogers. It is clear, for the reasons set out in my substantive judgment, that Mrs Rogers was actively involved in the matters in question and has relevant knowledge.

[5] I am intending to adjourn matters – for the reasons just stated – to give Mr and Mrs Rogers a further opportunity to reflect and to comply with the orders. But there is a further consideration. This is Mr Rogers’ medical condition. I do not

propose to record in this judgment the details of Mr Rogers’ health. The matter of particular relevance is that Mr Rogers has stated in an affidavit that on two occasions at Auckland Prison he was without essential medication for a period of two days. Mr Rogers did not suggest that this occurred intentionally. It does appear that it occurred quite possibly through inadvertence. Mr Rogers himself has said that he has only just become aware of how important it is for him to maintain this particular medication at the appropriate dosage and continuously – that is to say, he has to take it every day. This aspect of the matter needs review before I make any final decision as to whether a further sentence of imprisonment is imposed on Mr Rogers to seek to secure his compliance with the Court order.

[6] In these circumstances the orders that I make today are as follows:

(a) The orders set out in paragraph [137] of my judgment of 15 December

2010 are renewed, except that the compliance date for Mr and Mrs

Rogers is 24 March 2011.

(b) There is an order that Mr and Mrs Rogers are to attend this Court again at 2:15 pm on 25 March 2011.

(c) The purpose of the hearing on 25 March is further to review the question of compliance by Mr and Mrs Rogers and to determine whether further sanctions should be imposed, and being sanctions on Mrs Rogers as well as Mr Rogers. I do need to make clear, subject to any further evidence that may be put before the Court by that date, that it is likely that there will be orders for committal against Mrs Rogers and Mr Rogers.

(d) At the hearing on 25 March it will also be necessary to have and to review all relevant evidence relating to Mr Rogers’ medical condition and, if relevant, also to Mrs Rogers’ health. In that regard it may be necessary, in order for this matter to be properly investigated and properly put before the Court, for Mr Rogers and, if need be, Mrs Rogers to provide appropriate authority to the plaintiffs’ to make their

own enquiries. In making that observation I am not suggesting that there be some general inquisition but clearly, if these matters are being put before the Court as matters of consequence, the other party must have an adequate opportunity to test the reliability and relevance of the matters. In this context there is also need for clear evidence to be put before the Court as to what happened at Auckland Prison. I am bound to put the responsibility for getting that evidence before the Court on Mr and Mrs Rogers through their counsel. I note that this sort of problem is put before the Court often enough in respect of people facing imprisonment and I expect that if the prison authorities are aware that particular medication needs to be taken daily then that

_{will happen.}

Peter Woodhouse J