Kiriwai Consultants Limited v Holmes [2014] NZHC 1796 (31 July 2014)

Last Updated: 8 August 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-000531 [2014] NZHC 1796

BETWEEN	KIRIWAI CONSULTANTS LIMITED Plaintiff
AND	KENNETH ANGUS HOLMES First Defendant KENNETH ANGUS HOLMES and DAVID BRIAN RUSSELL AS TRUSTEES OF K A HOLMES 2003 FAMILY TRUST Second Defendant HOLMES VENTURES LIMITED Third Defendant

Hearing:	31 July 2014
Appearances:	P J Dale for Plaintiff B D Gray QC for Defendants
Judgment:	31 July 2014

_{JUDGMENT OF COURTNEY J}

This judgment was delivered by Justice Courtney on 31 July 2014 at 4.45 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date.............................}

KIRIWAI CONSULTANTS LTD v HOLMES & OR [2014] NZHC 1796 [31 July 2014]

[1] Mr Holmes has appealed my judgment of 19 March 2014 under which he was ordered to pay the plaintiff, Kiriwai Consultants Ltd, $2,681,274 together with interest. He applied for an order staying execution of the judgment pending determination of the appeal. After hearing counsel this morning I dismissed the application, with costs to the plaintiff on a 2B basis and reasons to follow.

[2] Mr Holmes deposed that he is unable to meet the judgment sum personally. However, he also asserted that his appeal is genuine and if a stay was not granted he could be bankrupted, rendering his appeal rights nugatory. Mr Holmes had proposed either an undertaking or a guarantee by Holmes Ventures Ltd (HVL) to meet the judgment in the event of the appeal failing. He said that HVL has net assets worth more than $10 million. However, HVL will not give Kiriwai access to its accounts for commercial reasons.

[3] Kiriwai will not accept either an undertaking or guarantee from HVL. It is not satisfied that HVL is sufficiently secure and does not wish to rely on HVL to meet the judgment. There was evidence at trial that the second defendants, Mr Holmes and Mr Russell, as trustees of Mr Holmes’ family trust, received the substantial purchase price for the HVL shareholding that gave rise to this litigation. Kiriwai considers that the trustees should be offering security. Mr Holmes has not given any explanation as to why they have done so.

[4] HVL’s unwillingness to allow Kiriwai access to its accounts is understandable. So, too, too, is Kiriwai’s unwillingness to accept Mr Holmes’ assurances regarding HVL. There is a long and unsatisfactory history between these parties. However, in the usual course Kiriwai would be entitled to enforce its judgment and I saw no reason why the usual course should not be followed.

[5] Following my decision to refuse the application Mr Dale undertook that no steps would be taken to enforce the judgment for 14 days, during which time Mr Gray would see if satisfactory security could be provided by the trustees. The matter was left on that basis,

_{with leave reserved to come back to me if necessary.}

P Courtney J