Public Trust as Trustee of the Abrie Trading Trust [2012] NZHC 541 (23 March 2012)

Last Updated: 12 April 2012

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2012-470-11 [2012] NZHC 541

BETWEEN PUBLIC TRUST AS TRUSTEE OF THE ABRIE TRADING TRUST

Plaintiff

AND ISABELLA CORNELIA ABRIE Defendant

Hearing: 23 March 2012

Appearances: Mr Ward-Johnson for plaintiff

Mr Abrie and Mr Nieuwhof in attendance

Judgment: 23 March 2012

_{JUDGMENT OF ASSOCIATE JUDGE DOOGUE}

Solicitors:

_{Mr M Ward-Johnson, Tauranga -} [e-mail]

_{Copy: The Defendant /Mr Nieuwhof}

PUBLIC TRUST AS TRUSTEE OF THE ABRIE TRADING TRUST V ABRIE HC TAU CIV-2012-470-11 [23

March 2012]

[1] When this matter was called in the summary judgment list today – 23 March

2012. Mr Ward-Johnson appeared for the plaintiff. Mr Nieuwhof addressed the Court and said that he had been authorised by the defendant to represent her interests. Mr Nieuwhof also told me that he did not have the standing of counsel in New Zealand courts. Mr Ward-Johnson opposed Mr Nieuwhof being heard. This

Court being bound by the authority of Re G J Mannix Ltd[1] I ruled that he would not

be heard on behalf of the defendant.

[2] The proceedings which have been filed are based upon what the plaintiff says is the unlawful diversion of funds that were the property of Abrie Trading Trust which operated the dental practice of Mr Abrie. After Mr and Mrs Abrie separated in

2000 another company called Abrie Dental 2002 Limited was incorporated by Mr Abrie. This company purported to be the new owner of the Bethlehem dental practice which Mr Abrie carried on. Those arrangements came under the scrutiny of Heath J in the context of Matrimonial Property proceedings and the Judge concluded that the purported transfer of the business of the dental practice to the new company and or a new trust which Mr Abrie set up, the Abrie 01 Trust, was of no affect. It followed from that conclusion that the payment of funds which were generated by the dental practice into the Abrie 01 Trust bank account of which the defendant is the proprietor, was unlawful.

[3] The defendant is the mother of Mr Abrie and she resides in South Africa.

[4] The plaintiff consistent with the conclusions of Heath J instituted these proceedings seeking summary judgment against the defendant on the causes of action set out in statement of claim. Judgment is sought against the defendant for an amount of money representing the total of the proceeds of the business activity of the dental practice which found their way into the Abrie 01 Trust bank account.

[5] The plaintiff relies upon two causes of action: the first is knowing receipt with an alternative of knowing assistance in relation to a breach of trust. A further

_{cause of action said to be based upon the right to equitable tracing is included.}

[6] Evidence has been filed from, amongst other persons, a senior trust officer with the Public Trust, Julie Wright, verifying the flow of funds into the Abrie 01

Trust. Although it is not strictly relevant to the proceeding before me today, Mr Ward-Johnson advises me that funds were then taken out of the relevant bank account and used for the acquisition of real estate in New Zealand. Further proprietary remedies may be sought in due course, Mr Ward-Johnson advises me, in relation those properties. For the moment though the plaintiff seeks a money judgment only.

[7] These proceedings are not defended. A purported notice of opposition has been filed which does not comply with the rules even in rudimentary respects and which was not supported by an affidavit as the rules require. On that basis the averment by the plaintiff in the usual form that the defendant has no defence to the proceeding together with what appears to be a plausible narrative of factual matters supporting the plaintiff’s claim is sufficient to justify the Court entering summary judgment against the defendant.

[8] One issue that needs to be considered is the matter of service on the defendant. Mr Ward-Johnson has set out the history of that matter and has filed on behalf of his client affidavits proving service. Essentially, service has been carried out which the plaintiff says complies with the requirements of the relevant Republic of South Africa civil code which provides that service can be accomplished by serving proceedings on a person over the age of 16 apparently in possession of a property. On a person over the age of 16 appearing to be in charge of premises in the absence of other relevant classes of person. The proceedings were served in this manner on 10 February 2012 by a Sheriff in the Republic of South Africa.

[9] I am satisfied that in the absence of any material pointing to a contrary conclusion that service was carried out in accordance with the procedural law of the Republic of South Africa and that that law is the relevant body of law against which validity of service is to be tested.

[10] For all of those reasons I consider that the way is clear to the plaintiff to obtain judgment against the defendant and there will be judgment against the defendant in the sum of $770,066.89 as well as interest pursuant to s 87 of the

Judicature Act at the rate of 8.4%. However, I have doubts that the period for which the interest is claimed has been correctly calculated in the memorandum that has been submitted to the Court by counsel. It would seem to me that in the absence of reference to contrary authority that the correct period for calculation of interest would commence at the point where the breach of trust or assistance thereof resulted in the loss of the funds. Counsel for the plaintiff is to file further submissions on it justifying the period which he asserts is the correct period over which interest under the Judicature Act is to be calculated.

[11] The plaintiff will be entitled to costs on a 2B basis together with disbursements to be fixed by the Registrar.

J.P. Doogue

Associate Judge

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[1] Re G J Mannix Ltd - [1984] 1 NZLR 309 - 18 April 1984.