Relationship Property: 'Cooper' v. 'Smithie'

  

It was at times a tempestuous relationship.  He served a four year prison term for a serious criminal offence.  At one point, she had a protection order taken out against him.  The High Court ruled he was entitled to a relationship property half share of their home that she paid for, overturning a Family Court ruling awarding him a fifteen per cent share only.

Both names were anonymised in the publicly released court judgment.

The High Court was told they started dating in late 2001.  She kept in contact whilst he was in prison.

In 2005, she purchased a residential property in Auckland suburb Panmure with $150,000 cash and a $130,000 bank loan.

The High Court was told that the two came to live together full-time from early 2009.  Three children were born over the next five years.

When their relationship ended in 2022, she said it would be ‘repugnant to justice’ if her former partner were to receive half the value of her Panmure home under the Property (Relationships) Act.

The Family Court agreed, highlighting his lack of financial contribution to their relationship, his history of periodic violence and her clear expressions from the outset of their relationship that the Panmure house was hers alone.  They lived apart for various periods during their relationship.  They had always kept their finances separate.

In the High Court, Justice Johnstone ruled a wider view must be taken.

The fact only one spouse funded purchase of a family home does not mean it ‘is repugnant to justice’ to have this asset split equally on separation, he said.

The Family Court did not place sufficient weight on shared responsibility for their children, he said.  Whilst she claimed to be the primary caregiver, both worked in paid employment outside the home and both were actively involved in childcare.      

His role in caregiving was recognised with Family Court orders subsequent to separation having him responsible for full-time care of two of their children.

While their relationship was punctuated by instances of physical violence, ‘no fault’ rules underpinning the Property (Relationships) Act meant misconduct was not relevant to questions of relationship property division, Justice Johnstone said.

As their relationship deteriorated, each partners’ disinclination to provide the other with love, companionship, loyalty and support became mutual, he said.

‘Cooper’ v. ‘Smithie’ – High Court (15.12.25)

26.049

Maori Land: Smith v. Thompson

  

It took an arrest in 2019 for contempt of court to remove Bruce Smith and his family from land north of Wairoa in a wider whanau dispute over his rights to occupy part of a remote 1760 hectare farming block: Rautawhiri Station.  Six years later, the Maori Land Court was asked for a definitive ruling on who owns a house and farm buildings at Rautawhiri on leased Maori land.

Mr Smith’s father Francis died in 1997.  Their family home burned down two years later.  It was re-built in 2001with proceeds of insurance, plus a $30,000 cash contribution put in by widow Winnie.        

Son Bruce subsequently claimed ancestral rights to the home.

Legal dispute in the Maori Land Court centred on leasehold rights over Maori freehold land described as Waipaoa 5A2.

In a property lease, buildings constructed on land are ‘fixtures,’ forming part of the real estate.  Leaseholders are entitled to occupy the building, but ownership of any building work done passes to the lessor and remains in the lessors’ ownership when the lease ends.

Lease terms may specify if any compensation is payable to the lessee for improvements made during a lease. 

The court was given detail of successive leases over the disputed Rautawhiri land stretching back to 1925.

At time of the 2001 rebuild, Maori Trustee as lessor held title on behalf of multiple beneficial owners, including the estate of Francis Smith.

Terms of the then existing lease stated there was no compensation for improvements, but annual rent could be adjusted downwards to part-compensate the lessee for improvements made which benefit the Maori Trustee as lessor.

Mr Smith argued the lease could be ignored; facts on the ground were different.

Insurance cover used to rebuild the family home came from an insurance policy taken out in the name of his late father’s estate with the premium paid for by his estate, he said.

The Maori Trustee did not value the rebuilt home, offering a reduced rental for the improvements made.

Judge Doogan said that under terms of the lease the Estate was required to insure the building in the name of the Maori Trustee and to pay the insurance premium.  It was an oversight that the policy did not note the interest of the Maori Trustee as lessor, he said. 

After the fire, the Maori Trustee took control of the insurance payout.  The Trustee approved rebuilding plans.  The Trustee made clear at the time that the rebuild ‘belonged’ to all customary owners as lessors, Judge Doogan said.

While no reduced rental was offered for the value of the rebuilt home, a rent concession had been applied consistently over decades for there being a family home constructed on the leased land.

Judge Doogan ruled Bruce Smith and his immediate whanau had no equitable right to sole occupation of the rebuilt home; beneficial ownership lies with the many customary Maori owners represented by the Maori Trustee as lessor, he ruled.

Control of the disputed property is now in hands of an ahu whenua trust with six elected trustees.

The court was told the home has been occupied only occasionally since 2003.  Farmers holding a grazing licence over the land do not live on the property.

Smith v. Thompson – Maori Land Court (12.12.25)

26.049

Income Projections: Freedom Digital v. Moore

  

Former real estate agent Stuart Pope fronted a test case for multiple investors seeking compensation for their failed investment in digital billboards promoter iSEE Digital.  Profit projections in a pre-investment information memorandum proved wildly overstated.  The claim failed.  An extensive disclaimer excused liability for inaccuracies.  

In 2017, Mr Pope and his spouse invested in a billboard purchase and leaseback deal put together by iSEE Digital (2012) Ltd. He had recently sold his Mike Pero real estate franchise.

On offer was the chance to buy a share in specific electronic billboards yet to be installed throughout New Zealand, this share in each billboard to be leased back to iSEE who would manage and sell advertising space.

The promised beauty of this system was that billboards were to be monitored centrally, with digital advertisements readily updated remotely.

It was later to come out in evidence in the High Court that revenue came to be impacted both by software glitches affecting remote operation of individual billboards and what turned out to be a limited number of customers placing advertisements.

Buy-in prices depended on size and location of proposed billboards.

Returns promised to investors included a return on the leaseback plus a share of net profits on advertising revenue earned on the billboard purchased.

Mr Pope invested in two Auckland billboards at a cost of $370,000.  His all-up return was dismal: $3650.     

Attempts to restructure the business in 2019, by merging with rival Lighthouse Digital, only saw their merged operations going into liquidation.

Through their family investment company, Freedom Digital Marketing Ltd, the Popes sued iSEE’s John Moore alleging negligence.

Freedom alleged profit projections contained in the investor information memorandum were negligently compiled.

Before investing, Mr Pope had questioned projections indicating a sixty per cent return on investment in year one; 180 per cent in year two.

He contacted Mr Moore who said that even if projected income in year one was reduced by 75 per cent, a return on investment of nearly fifteen per cent was possible.

Employed by iSEE as chief financial officer, Mr Moore himself invested in iSEE’s billboard purchase and leaseback scheme.

For investors, returns proved to be close to zero.

In the High Court, Justice Blanchard ruled that disclaimer wording featuring prominently at the front of the investors’ information memorandum made it clear there was no liability falling on iSEE or its staff and directors for any inaccuracy in financial information provided either in the memorandum or by subsequent enquiry.

This wording barred any claim for negligence.

Investors did not succeed with their argument that projections were so inaccurate that there was no reasonable basis for them.

iSEE’s business was a new one.  It had a very limited track record.

Freedom Digital as an investor knew there was risk that the investment could be a total failure, Justice Blanchard said.

Freedom Digital Marketing Ltd v. Moore – High Court (11.12.25)

26.048

Reparations: Rajah v. Police

  

Three months after a sentence discount on grounds he would repay $420,000 stolen from his employer, Thirusivan Perumal Rajah was back in court having the reparations order cancelled.  The rest of his sentence, nearly thirty months imprisonment for fraud, remains unaltered.

The High Court was told Rajah stole just under $420,000 from his employer in a long running false-invoicing fraud.  Name of his employer was suppressed.

He created false invoices over an eight year period for work never done, channelling payments into bank accounts he controlled.

At trial, Rajah told the court this money was used to pay credit card debt.

He offered his $100,000 Kiwisaver balance as compensation.

Sentencing Act makes it mandatory for judges to take into account any offer of reparations.

When imposing the reparations order, the trial judge made a slight reduction in Rajah’s term of imprisonment: five per cent.

Three months on from this September 2025 sentencing, Rajah appealed the reparations order stating his full financial circumstances were not known at time of sentencing.

An early payout of his Kiwisaver balance is unlikely; a reparations order probably will not qualify as ‘financial hardship’ justifying release of the money.

He claimed bankruptcy looms, with other creditors pressing him for payment; debts he cannot meet whilst in prison, unable to work.

In the High Court, Justice Jagose said this fresh evidence indicates Rajah has no means to pay a $420,000 reparations order.  Reparations were cancelled.

Reparation orders operate as a short cut for victims, saving them the time and expense suing to recover money stolen.

It is still open for Rajah’s former employer to take civil action, seeking to recover losses caused by Rajah’s fraud, Justice Jagose said.

Rajah v. Police – High Court (11.12.25)

26.047

Comparative Advertising: Zuru v. Lego

  

When Zuru’s negotiations with Lego came to naught over description on packaging for its ‘Max Build’ toy bricks as being Lego-compatible, Zuru went to court, getting a Court of Appeal ruling that there was no misuse of Lego’s trade mark.

Trademark lawyers will be parsing the court’s legalese for hints on where comparative advertising is heading.

The court was told Lego pounced on New Zealand based Zuru in 2019 when it first marketed its toy bricks as being compatible with Lego’s well-known product.

Zuru then changed its packaging to state its product was compatible with major bands.

Ongoing negotiations with Lego over what might be acceptable wording on Zuru’s Max Build packaging came to nothing.

Zuru took its commercial problem to the courts, seeking a ruling on whether its proposed packaging breached the Trade Marks Act or the Fair Trading Act.

After losing in the High Court, Zuru won round two in the Court of Appeal.  

Two of the three Court of Appeal judges ruled Zuru’s descriptive wording on Max Build packaging stating its product was ‘Lego Brick Compatible’ did not amount to use of the word Lego as a trademark.  End of story.

In lonely isolation on the Court of Appeal bench, Justice Cooke decided otherwise; ruling Zuru is using the Lego trademark to associate Lego with its Zuru product.

Trade Marks Act permits use of a rival trademark in comparative advertising if it is ‘honest use.’

There was honest use by Zuru, Justice Cooke ruled.

There was no attempt to co-opt business goodwill attached to the Lego brand.

Statements on Max Build packaging were factually true.  Zuru’s product is functionally equivalent to Lego’s product.  The comparison is fair.  Zuru’s product is a substitute.

All three judges agreed Zuru’s packaging did not breach the Fair Trading Act.

Quoting comments in a comparable English case, the court said ‘a touch of reality is needed here, consumers are not stupid.’

Customers are brand aware.  They are not easily fooled and would not reasonably think that Zuru’s toy bricks are made by or associated with Lego, the court said.

Zuru New Zealand Ltd v. Lego Holding A/S – Court of Appeal (10.12.25)

26.046

Arbitration: Garcha Brothers v. St Heliers 88 Ltd

  

Legal manoeuvring by investors Nicole and Victor Armani was described by the High Court as ‘smacking of tactical conduct’ when ordering their company St Heliers 88 Ltd pay $630,000 into court while they dispute an arbitrator’s ruling that their company pay damages for misrepresentation on lease of an Auckland motel.

The court was told Sandip Singh’s Garcha Brothers Ltd walked away from its lease of a St Heliers property on St Johns Road operating as a sixteen-unit motel, alleging misrepresentations by the Armanis and their company.

In dispute were an allegation of unconsented alterations to the building by St Heliers 88 and an argument whether the motel units were allowed to be tenanted.      

A 2025 arbitration found in favour of Garcha Brothers.  It was entitled to cancel its lease and recover damages for wasted costs; primarily its borrowing costs, incurred funding its now-cancelled purchase of the lease.

Unhelpfully, St Heliers 88 refused to pay its previously agreed half share of arbitration costs.  This forced Garcha Brothers to pay the full amount in order to uplift the arbitrator’s award, to learn it was successful.

St Heliers 88 then challenged the arbitrator’s ruling, claiming variously: Mr Armani had no authority to go to arbitration on St Heliers 88’s behalf; the arbitrator exceeded her authority; the process was in breach of natural justice; and the outcome was contrary to public policy.

Justice MacGillivray indicated there has been little evidence of substance to support these claims.  St Helier 88’s High Court application to set aside the arbitration is weak and appears to be tactical, he said.

There is yet to be a full court hearing.

In the interim, St Heliers 88 was given six weeks to pay into court the $630,000 arbitration award in favour of Garcha Brothers.

Alternatively, St Heliers 88 may provide mortgage security acceptable to Garcha Brothers.

The court was told mortgage debt currently secured over St Johns Road exceeds the property’s value.

Should it fail to comply with these interim orders, Garcha Brothers can immediately register the unpaid $630,000 arbitration award as a default court judgment against St Heliers 88 Ltd, Justice MacGillivray said. 

Garcha Brothers Ltd v. St Heliers 88 Ltd – High Court (9.12.25)

26.045

Limitation Period: Heartland Bank v. Campbell

  

The High Court allowed Heartland Bank to chase down part of a $910,000 debt otherwise statute-barred as being more than six years overdue because delays arose from the Bank’s generosity in allowing Taranaki debtors Caroline and Calvin Campbell extra time to offer an acceptable repayment plan.

The High Court was told $910,000 remained owing from a 2012 commercial transaction in which the Campbells and their family trust borrowed $780,000 to purchase a commercial property on Port View Crescent in New Plymouth.  They stood as guarantors.  Funds were borrowed in the name of a company controlled by Ms Campbell.

This venture into commercial property was not a success.  Two tenants left.  There was insufficient cash to service the Heartland Bank loan.

Evidence was given of Heartland calling up the loan in 2017.

A subsequent forced sale of Port View did not cover the full debt.

Heartland Bank issued a charging order over the Campbells’ New Plymouth home; first step to having Heartland sell their home to recover the guaranteed shortfall.

Charging order enforcement was delayed several years while the Campbells first made a complaint to the Banking Ombudsman about manner of the Port View forced sale and then continued their ultimately unsuccessful discussions with Heartland about settling the outstanding debt.

Heartland pressed the Campbells to sell their home.  They entertained plans to subdivide before sale.

For Heartland, time ran out.

A Limitation Act six year rule meant the remaining debt was no longer recoverable; it was time-barred.

The charging order lapsed.

Back in the High Court, Justice Gardiner gave approval for Heartland Bank to resume its charging order sale of the Campbells’ family home to recover the remaining debt, now calculated at $417,400.

Refusing approval would discourage banks from continuing to negotiate with customers as the six year time limit approached, she said.

The amount Heartland Bank is allowed to recover was reduced, in part, by the Bank deciding to lower the interest rate compounding on unpaid arrears from eighteen per cent to five per cent.

Heartland Bank Ltd v. Campbell – High Court (9.12.25)

26.044

Restraint of Trade: Raine & Horne v. Bratschi

  

Rebranding Mike Pero real estate franchises as Raine & Horne still leaves real estate staff bound by earlier Mike Pero restraints of trade should they leave to set up in competition, the High Court signalled in a dispute over what was formerly a Southland Mike Pero franchise.

After Australian financial service group Liberty Financial Group bought out Mike Pero’s real estate franchises in 2020, it set about re-branding the seventy-something branches as Raine & Horne.

Not all Mike Pero franchises are enamoured with the re-brand.

The High Court was told Sheree Williams and Kathrine Bratschi, holders of a Mike Pero franchise in Gore, called it quits.

Ms Williams paid the $50,000 termination fee stated in their Mike Pero franchise agreement, plus a further sum to be released from a restraint of trade agreement preventing her from selling real estate in Gore for the next two years.

Ms Bratschi did not do similar, before taking up work in 2025 with rival firm Aritzo Real Estate.

She claimed in the High Court that her contract was with Mike Pero and that newcomer Raine & Horne could not enforce a Mike Pero restraint of trade against her.   

In a preliminary High Court hearing, Justice Osborne ruled Liberty Financial has a strong argument that re-branding does not affect its right to enforce existing Mike Pero restraints of trade.

Whilst allowing Ms Bratschi to continue working for Aritzo, he ruled she must keep full records of all sales made for two years through Aritzo, should a later full court hearing decide Liberty is entitled to damages.

The court was told Raine & Horne has yet to set up shop in Gore since Liberty’s Mike Pero branded franchise folded.

Raine & Horne New Zealand Pty Ltd v. Bratschi – High Court (8.12.25)

26.042

Maori Land: Malcolm v. Te Hana Trust

  

A 26 year delay in registering with Land Information a status change for Maori land led to protracted legal argument over who owned a Bay of Plenty property, highlighting ongoing problems integrating Maori title into the separate Land Information registry which records ownership of most New Zealand land.

The two systems of recording land ownership have little in common.

Changes of ownership to Maori land are overseen by specialist Maori land courts; a regime designed to maintain a written record of ownership changes, ensuring land in customary Maori ownership devolves according to Maori custom.

By contrast, there is no judicial oversight of changes to ownership for land described as‘general land,’ recorded on an electronic register maintained by Land Information.

General land encompasses most residential, commercial and rural land in New Zealand.

For general land, the maxim is: ‘the register is everything.’  Any person registered with Land Information as owner of general land, in the absence of fraud, has conclusive rights of ownership.

Tight legal procedures surrounding transfers of general land minimise instances of fraud.

Administrative problems have followed a partial integration of the two separate records of land ownership.

For Maori land having status of ‘Maori freehold land,’ ownership can be recorded on a Land Information title (with Land Transfer Act rules applying).  The requirement for Maori Land Court oversight is signalled by noting on the Land Information title that the land in question has Maori freehold status.

For Te Poroa whanau in Bay of Plenty, administrative stuff-ups led to disputed ownership of a small block of ancestral land.

Maori Land Court records said it was Maori freehold land; Land Information records said it was general land. 

The Maori Appellate Court was told that the Maori Land Court approved in 1996 a two hectare property in Maori ownership, then currently held as general land, to be given the status of Maori freehold land.

By oversight, this change in status was not noted on the existing Land Information title.

Ten years later, the property was transferred to a family trust, known as the Te Hana Family Trust; part of a whanau estate planning scheme.

With no designation on the Land Information title that this land was Maori freehold land, lawyers did not realise Maori Land Court approval was needed.

This mistake emerged only after deaths of Joseph and Grace Malcolm, who set up the Te Hana Trust.

Those inheriting from Joseph and Grace said the land was theirs.  Earlier transfer of the family’s Maori freehold land to trustees of the Te Hana Trust was invalid; no Maori Land Court approval was given, they said.

Beneficiaries of the Te Hana Trust said their interest was noted on the title first; the land was theirs.  Trustees of their Trust said failure to get Maori Land Court approval was an honest mistake, they were not party to any fraud; Land Transfer Act rules meant the Trust could not be removed as owner.

The Maori Appellate Court said land cannot have two different statuses at the same time.  It cannot be both general land and Maori freehold land.

The effect of Land Transfer Act rules is that status of general land changes only when that status change is registered on the Land Information title, it ruled.

Te Hana Trust is owner, the court said.  There was no fraud in the manner it became registered as owner.

When Te Hana Trust’s ownership was registered, status of the land was recorded, albeit incorrectly, as general land.  No Maori Land Court approval was then required.

Belatedly correcting the Land Information register to record the land’s status as Maori freehold was irrelevant to validity of Te Hana Trusts’ existing ownership.

Malcolm v. Te Hana Trust – Maori Appellate Court (8.12.25)

26.041

Cartel: Commerce Commission v. Sweetspot

  

Naively assuming that a proposed market share arrangement was industry practice, and comforted that a competition lawyer had signed off on the deal as tickety-boo, was not enough to save Auckland-based courier company GoSweetSpot from a $525,000 fine for cartel behaviour in breach of the Commerce Act

Sweetspot Group Ltd was the first penalised in a Commerce Commission crackdown on anti-competitive behaviour within the annual one billion dollar courier industry.

The High Court was told of market sharing arrangements signed by Sweetspot in 2015 with Freightways’ subsidiary Post Haste Group, and in 2019 with Freightways itself, in which each agreed not to poach the other’s customers.

If offered work by an existing customer of their erstwhile competitor, each agreed not to quote for the new work.  The new job could be taken up only after discussions with their supposed competitor.

These non-compete arrangements had been bundled into a wider agreement on pricing for use of Sweetspot’s industry specific proprietary software.  

Commerce Commission was told Freightways initiated these agreements, then having Sweetspot sign.  Freightways told Sweetspot the deal had been signed off by a competition lawyer as compliant with the Commerce Act.

It was not compliant.

Later admitting to breaching the Act, Sweetspot told the Commerce Commission it was not aware of the illegality when signing up.

The High Court imposed a $525,000 fine.

Commerce Commission v. Sweetspot Group Ltd – High Court (8.12.25)

26.043

Lawyer: Stebbing v. Stebbing

  

Law firm Farry Law was disqualified from acting in fiercely fought litigation between two branches of the Stebbing family after allegations it has taken a partisan approach assisting brother Robert whilst still acting as supposedly independent trustee of a Stebbing family trust.

Vaughan Stebbing alleges his brother is conniving to cut Vaughan’s children out of their expected inheritance of Stebbing assets.  Robert alleges he was misled in discussions following their father’s 2009 death which led to corporate restructuring seeing Vaughan’s children being the ultimate beneficiaries of Stebbing family assets.

Their father Eldred Stebbing became a legend in music circles, setting up an Auckland recording studio in the 1950s.

At time of his death, he owned a fifty per cent stake in two companies: Stebbing Recording Centre Ltd and Stebbing Properties Ltd.  Sons Robert and Vaughan each held a twenty five per cent stake.

The High Court was told subsequent corporate restructuring saw multiple family trusts established.  Trust deeds were carefully drafted to avoid spouses having any claim against Stebbing assets on divorce.

The High Court was told that Robert only learnt decades later that nearly all Stebbing assets might pass eventually to Vaughan’s children; his spouse could inherit only an eight per cent stake held in Robert’s own name.

A monumental falling out between brothers has seen each suing the other.

The court was told Vaughan’s 2023 offer to buy out his brother at $13 million was refused.

In a preliminary High Court hearing, Vaughan had legal advisors Farry Law restrained from acting as counsel for brother Robert in any subsequent court hearing.

He alleges Robert, in league with Farry Law as family trustee, is secretly rewriting trust deeds to now exclude his children as beneficiaries.

He alleges copies of draft documents were not released when requested, while copies with critical sections redacted were provided to accounting advisors.

Associate Judge Sussock said this highly charged dispute has arisen through a failure to provide documents when requested, with no real explanation given.

Farry Law’s legal advice to Robert is likely to be a central issue in any subsequent court hearing, she said.  It is not appropriate for Farry Law to then also represent Robert in court, she ruled.

Lawyers cannot be a witness at trial and also act as counsel; there is a clear conflict, affecting counsel’s objectivity.

Stebbing v. Stebbing – High Court (5.12.25)

26.040

Insurance: FMA v. Tower

  

For the second time, Tower Insurance has overcharged customers entitled to multi-policy discounts.  The first, saw Tower in 2017 get a telling off from the Commerce Commission but no financial penalty in return for a promise to upgrade its systems.  The second, under a new regulator in 2025, saw Tower negotiate a seven million dollar penalty with the Financial Markets Authority.  Now, Tower has decided to ditch multi-policy discounts.

Tower talked its way out of a threatened 2017 prosecution by promising it would fix internal systems causing premium miscalculations and undertaking to compensate all affected customers.

Tower’s project Bluebird was supposed to iron out problems experienced in migrating data from legacy systems.  It was not successful.

The High Court was told similar problems arose subsequently; another migration issue, but a different one.

Tower self-reported to the Financial Markets Authority (FMA) its overcharging of customers for a ten year period ending early 2025.

Some 61,000 customers were affected; overcharged about eleven million dollars.

Over the same period, other customers were under-charged nearly ten million dollars.

Tower compensated customers overcharged.  It did not pursue customers under-charged.

It was not enough to miscalculate premiums, Tower also mis-described the discount policies it inaccurately applied.

Tower faced legal action under the Financial Markets Conduct Act both for overcharging customers and for publishing misleading marketing material and Facebook posts which misrepresented its supposed multi-policy discounts.

The High Court approved a negotiated settlement between the FMA and Tower with Tower ordered to pay a seven million dollar penalty.

FMA has first claim on this money to pay its costs.

Financial Markets Authority v. Tower Ltd – High Court (5.12.25)

20.039

Asset Forfeiture: Commissioner of Police v. Jacobson

  

With an extensive marketing campaign for his business and an impressively diversified investment portfolio, Sharma Saili Jacobson could be the textbook example of a successful entrepreneur.  But no. His Whangarei business was dealing in drugs; the investment portfolio seized as proceeds of crime.

In a court approved settlement, Jacobson agreed to surrender investment assets totalling $222,300.

Police claim he generated income totalling at least $963,000 but settled for an agreed lower figure of $222,300.

In 2023, Jacobson’s sentence was reduced on appeal to two years and eight months imprisonment for possession and dealing.

The High Court was told of Jacobson marketing a variety of prohibited drugs through use of mass texts sent to over one hundred people each time.

To camouflage his trail, he changed his phone number every 28 days.

Police analysis of his phone records identified some 3600 transactions with nearly 400 different customers over a twenty month period.

As part of the negotiated settlement, Jacobsen agreed to surrender assets held in cash, bank deposits with three different banks, cryptocurrency and shares in six NZX listed companies.

Jacobson also signed a statutory declaration stating he has no other assets available to meet a proceeds of crime forfeiture order.

If untrue, Police may later seize further assets that come to light.

Commissioner of Police v. Jacobson – High Court (5.12.25)

26.038

Structured Finance: Nirvana Farm v. FR Waipuna

  

It was a structured finance deal akin to a mortgage Nirvana Farm claimed, trying to revive its lapsed option to repurchase its Taranaki land blocks being planted out in pursuit of carbon credits.  Nirvana struggled to find the cash needed to buy land recently valued at $7.8 million with its option price to buy being $4.69 million.   

Controlled by Whanganui honey producer Henry Mathews, Nirvana’s financial position has been fragile since market prices for honey plummeted during the covid-19 pandemic.

At a time when Nirvana owed BNZ some $52 million, a credit line was opened up with Singapore-based Vitol Asia Ltd offering $55 million in exchange for carbon credits.

The High Court was told Vitol’s financing required Nirvana to plant a new forest on some 3000 hectares of land near Stratford, land then currently used for harvesting manuka honey.

In 2022, foresters PF Olsen Ltd were contracted to plant and manage the new plantation on Nirvana’s behalf.

Evidence was given of Nirvana failing from the outset to pay Olsen’s contracting charges on time.  This led to Vitol Asia making good Nirvana’s defaults, for a brief period.

Olsen subsequently demanded invoices be pre-paid, before work would continue.  This resulted in Vitol Asia banging heads together, seeking a commercial solution.

Nirvana offered Olsen mortgage security over the Stratford land; giving it the status of a secured creditor for unpaid invoices.  Olsen declined, suggesting Nirvana sell its land to Olsen with a right to buy this land back later for a fixed price.

Nirvana’s further offer of mortgage security was refused.

A subsequent 2024 contract saw Nirvana agree to sell its land to Olsen for $3.86 million, being the balance of the contract price due under their forestry management contract.  In addition, Nirvana was required to make monthly payments of $50,000; to cover Olsen’s ‘interest and other costs.’

Nirvana had the option to buy back the land in three month’s time.  It failed to raise the cash.

Lodging caveats over the land to block Olsen’s planned onward sale, Nirvana claimed its sale plus option to buy back was analogous to a mortgage.

Olsen was in breach of duties as a mortgagee by not giving Nirvana sufficient time to refinance, it alleged.

Associate Judge Skelton ordered removal of the caveats, allowing Olsen’s onwards sale to proceed.

It was clear from the 2024 discussions that Olsen was not willing to take mortgage security, he said.  It wanted title to the land.  There was no intention that the sale plus option to buy back could be construed as a common law mortgage, he said.

The court was told Nirvana Farm Ltd is in receivership.  Nirvana receivers took no part in the litigation.  They raised no objection to Mr Mathews making a claim against Olsen on Nirvana’s behalf.

Nirvana Farm Ltd v. F R Waipuna Ltd – High Court (5.12.25)

26.039

Mutual Wills: re Estate of Brian Monk

  

Despite increasing numbers of blended families, the High Court refused to budge from a long-standing rule that assets disposed of under agreed mutual wills are not available for any claim by surviving children under the Family Protection Act.

Associate Judge Taylor struck out a family protection claim by the late Brian Monk’s four children, with his children concerned that his widow, who was Mr Monk’s third wife, would spend up large, leaving them with nothing.

In their separate wills, both Mr Monk and his widow stated each agreed not to change their wills, dividing their assets, on the death of whoever survived the other, equally between all children in their blended family.  Mr Monk has four children from earlier marriages; Ms Monk two children from her previous marriage.

On Mr Monk’s death in 2023, assets passed to his widow.

Her will promises that on her death her assets will be divided equally between the six children.

In the High Court, Mr Monks’ natural children alleged his widow is profligate, likely to spend ‘their’ inheritance whilst her children will remain comfortably off with expected inheritances from their grandmother.

Mr Monk’s children sued in the High Court, asking for an immediate payout under the Family Protection Act.

This Act allows family to claim against a parent’s estate.

Enacted as social legislation, it was originally intended to ensure that close family, who are in need, receive proper maintenance and support on their parent’s death.

The Act has received a liberal interpretation, resulting in court rulings rearranging inheritances as between surviving children.

Judge Taylor struck out their claim.

Court rulings stretching back nearly a century make it clear that assets passing under agreed mutual wills cannot be subject to a Family Protection Act claim, he said.

Across the Tasman, Australia’s highest court has overturned the rule.

In the New Zealand High Court, Judge Taylor was unwilling to do the same.  It is for the Court of Appeal or the Supreme Court as our higher courts to decide, he ruled.

re Estate of Brian Thomas Monk – High Court (5.12.25)

26.036