Aztech Engineering Limited v Campbell [2012] NZHC 2535 (1 October 2012)

Last Updated: 17 October 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2036 [2012] NZHC 2535

BETWEEN AZTECH ENGINEERING LIMITED Plaintiff

AND GLADYS RUTH CAMPBELL Defendant

On papers

Counsel: A McIntyre for Plaintiff

Judgment: 1 October 2012

JUDGMENT OF THE HON JUSTICE KÓS (Freezing order – without notice)

[1] The defendant Gladys Campbell was an employee of the plaintiff Aztech Engineering Limited between November 2009 and March 2012. She was employed as an accounts administrator. After she left Aztech’s employment, her successor discovered discrepancies in Aztech’s accounts.

[2] Evidence before me suggests a seriously arguable case that the defendant has prepared and processed fictitious invoices, resulting in payments of $252,402 from Aztech’s ASB bank account to two accounts at the PSIS and Westpac controlled by the defendant. A good arguable case is also before me to the effect that Ms Campbell processed holiday and sick pay to which she was not entitled in the sum of $8,802.

[3] Today Aztech applies on a without notice basis for a freezing order in relation to funds held by or for the defendant in three accounts (two being those to which

_{payments from Aztech’s ASB bank account were made).}

AZTECH ENGINEERING LIMITED v CAMPBELL HC WN CIV 2012-485-2036 [1 October 2012]

Decision

[4] In the circumstances I am satisfied there is a justified basis for granting the freezing order sought on a without notice basis.

[5] I note that:

(a) a seriously arguable case of fraud is demonstrated on the papers before me;

(b) there is a real risk of dissipation of the defendant’s assets in such a

case if an on-notice application were instead made;

(c) the defendant appears to hold assets within the jurisdiction;

(d) the balance of convenience favours freezing funds, while providing leave to apply to lift or vary the order at short notice; and

(e) an undertaking as to damages has been furnished by Aztech.

Orders

[6] Orders are made as follows.

(a) There will be an order restraining the defendant from removing or disposing of, dealing with or diminishing the value of the following:

(i) all and any funds held in the defendant’s BNZ/PSIS account

styled “Campbell Vista Print” numbered [account number];

(ii) all and any funds held the defendant’s Westpac Bank account styled “Gladys Campbell” numbered [account number] and

(iii) all and any funds held in the defendant’s National Bank account styled “Rogue Collectables” numbered [account number]:

for 14 days (expiring midnight on 15 October 2012) unless continued or renewed by that date.

(b) This freezing order does not prohibit the defendant from dealing with assets covered by the order for the purposes of:

(i) paying ordinary living expenses;

(ii) paying legal expenses related to the freezing order; and

(iii) disposing of assets, or making payments, in the ordinary course of business, including business expenses incurred in good faith.

(c) The defendant may apply to the Court to discharge or vary the order on two working days notice.

(d) The defendant shall file and serve on the plaintiff an affidavit, prior to

15 October 2012, setting out all documents in her possession or power showing what has become of the funds totalling $261,194.61 which the plaintiff alleges has been paid unlawfully by it to the defendant to her PSIS and Westpac Bank accounts (and in the case of some of those funds, further transferred to her National Bank account as specified above).

(e) This order does not affect anyone outside New Zealand until it is declared enforceable by the Court in the relevant country, (in which case it affects a person only to the extent that it has been declared enforceable) unless the person is:

(i) A person to whom this order is addressed, or an officer of that person, or an agent appointed by power of attorney of that person; or

(ii) A person who has been given written notice of this order at that person’s residence or place of business within New Zealand and is able to prevent acts or omissions outside the jurisdiction of this Court that constitute, or assist, a breach of this order.

(f) This order does not prevent, in respect of assets located outside New

Zealand, any third party from complying with:

(i) what it reasonably believes to be the third party’s obligations, contractual or otherwise, under the laws of the country and which those assets are situated or under the proper law of any contract between the third party and the respondent; and

(ii) any orders of the Courts of that country, provided that reasonable notice of any application for such an order is given to the applicant’s solicitors.

(g) The application is listed for reconsideration, on notice, before

Collins J on 15 October 2012 at 9.30 am.

Stephen Kós J

Solicitors:

DAC Beachcroft New Zealand, Wellington for Plaintiff