Servcorp Limited v Pillay [2018] NZHC 3208 (6 December 2018)

Last Updated: 11 December 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-2679 [2018] NZHC 3208

UNDER	Part 32 of the High Court Rules
BETWEEN	SERVCORP LIMITED First Applicant SERVCORP NEW ZEALAND LIMITED Second Applicant
AND	VINESH PILLAY First Respondent HOLDER OF BANK ACCOUNT WITH WESTPAC BANKING CORPORATION IN NEW ZEALAND BEARING NUMBER 0254163 or 2541630, BSB 031 322 Second Respondent

Hearing:	On the papers
Counsel:	M D Arthur and J Marcetic for Applicants
Judgment:	6 December 2018

JUDGMENT OF PALMER J

This judgment is delivered by me on 6 December 2018 at 4.30pm pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:

Chapman Tripp, Auckland

SERVCORP LTD v PILLAY [2018] NZHC 3208 [6 December 2018]

[1] Servcorp Ltd and Servcorp New Zealand Ltd apply, without notice, for freezing and ancillary orders against Mr Vinesh Pillay and the unidentified holder of a Westpac bank account.

[2] Evidence of the grounds for the application is contained in affidavits of Mr Anton Clowes, the Chief Financial Officer of the applicants, and Mr Johnathon de la Hodye, a solicitor acting for the applicants in proceedings against Mr Pillay in the Supreme Court of New South Wales.

[3] In summary, Mr Pillay has been employed as an accountant by Servcorp Ltd since January 2018. He is responsible for making payments from an ANZ New Zealand bank account to third parties in New Zealand. On 29 November 2018, representatives of the applicants were informed by ANZ of a number of suspicious payments made over an eight-month period to the identified bank account. Internal investigations suggested Mr Pillay fraudulently caused $808,454.17 to be transferred from the applicants to the bank account. This involved him: re-presenting for approval invoices issued by third parties that had already been paid; modifying invoices and correspondence so payment could be approved to the bank account; and manipulating the general ledger to cover up the double payments.

[4] The orders sought would: prohibit the respondents from dealing with their assets in New Zealand; require Mr Pillay to confirm within 15 days whether he is the holder of the bank account and, if not, identify who is; and require him to set out the nature, extent and value of his assets in New Zealand.

[5] To obtain freezing orders, an applicant must satisfy the Court he or she has a good arguable case for substantive relief, there are assets to which the order can apply and there is a real risk of their dissipation.¹ The Court must weigh the overall interests of justice. A good arguable case requires “the allegations in the proposed claim are capable of tenable argument and are supported by sufficient evidence, bearing in mind the early stage at which the application is likely to be brought”.² Ancillary orders,

¹ Shaw v Narain [1992] 2 NZLR 544 (CA) at 548; High Court Rules 2016, r 32.5(4).

² Hannay v Mount [2011] NZCA 530 at [22].

including for eliciting information relevant to the freezing order, may be made under r 32.3.

[6] I am satisfied it is appropriate for the orders to be made without notice as service could well trigger rapid dissipation of the assets. I am satisfied the applicants have a good arguable case for substantive relief, there are assets to which the order can apply and there is a real risk of their dissipation. The allegations are capable of tenable argument and are supported by sufficient evidence. I am satisfied the other requirements of the High Court Rules 2016 are met.

[7] I am satisfied the application for freezing orders and ancillary orders should be granted as sought. I so order, under part 32 of the Rules. I direct:

(a) Under r 32.7, the orders expire on 7 February 2019.

(b) The applicants may apply, on notice, for renewal of the orders before they expire.

(c) The orders, and this judgment, must be served on the respondents as soon as practicable.

(d) I grant leave for any party affected by the orders to apply to discharge or vary them on three working days’ notice to the other parties.

(e) The applicants must file a memorandum updating the Court on developments by 1 February 2019. The proceeding will then be called in a duty judge list in the week of 4 February 2019.


Palmer J