Conviction
for assault and an allegation of forgery all featured in a business dispute
between Waikato couple Janine Roband and Mike Cann all as a backdrop to their
relationship property dispute.
Separating in 2007
after thirteen years marriage, Ms Roband and Mr Cann had for more than ten
years jointly run their trucking business operating through two companies:
Roadhaul (N.I.) Ltd and RHT Holdings Ltd.
The companies went into liquidation in 2009. Mr Cann was bankrupted two years later.
Against this background
Ms Roband claimed the value of family assets was compromised by trustees of the
couple’s family trust, the McGerkinshaw Property Trust, committing trust assets
to unlimited interlocking guarantees of trucking company debts. Ms Roband is a trustee herself, along with
her former husband Mr Cann and a partner in O’Sheas, a Hamilton law firm. She sued for $1.05 million, alleging O’Sheas was
in breach of fiduciary duty by allowing trust assets to cover trucking company
borrowing. Justice Edwards ruled there
was no breach. There was no conflict of
interest in O’Sheas acting for both the trucking companies and the Trust giving
advice on signing the guarantees. The
loan monies were used in 2006 to purchase a bulk fertiliser storage business at
Hautapu. Projected income benefitted
both the trucking companies and the Trust.
Ms Roband also sued separately
for $367,000 from the 2007 sale of a McGerkinshaw Trust property at Newstead she
said was wrongly applied to meet trucking company debts. The Newstead property included the family
home together with two large workshops for trucking operations. She claimed her signature was forged to bank documents
which entitled Westpac to claim all net proceeds of sale. The court was told that two weeks prior to
the document being signed, Mr Cann assaulted his wife by pulling her out of a
car by the arm. He was later charged and
convicted. A handwriting expert said the
signature was probably that of Ms Roband.
Justice Edwards said on the balance of probabilities Ms Roband did sign
documents agreeing all equity in the Newstead sale would be used to pay down
trucking company debts. Ms Roband had attended meetings at law firm O’Sheas where
Westpac’s entitlement to payment was discussed.
Against this background, it is simply not credible for Ms Roband to
allege she was unaware the full proceeds would go to Westpac, Justice Edwards
said.
Ms Roband also asked Mr
Cann be removed as a trustee of the McGerkinshaw Trust. Justice Edwards ruled Mr Cann is not a fit
and proper person to be trustee. The
court was told Mr Cann was discharged from bankruptcy in September 2016, subject
to conditions. Mr Cann was described as
entering into elaborate fraudulent schemes after being bankrupted in order to
keep assets away from creditors. This
included use of fictional business entities and creation of false invoices.
Roband
v. O’Sheas & Cann – High Court (9.10.17)
17.133