Will: Mabbett v. Llewellyn

 

William Llewellyn, previously known as William Biggs, was surprised to learn 35 years after dating Sue Mabbett that she had named him as sole beneficiary of her estate in a 1988 will.  Her sisters claimed a handwritten note found amongst Sue’s belongings after her 2023 death should instead stand as her final will.

This note set out cash gifts for her nieces and nephews, with the rest of her property going to two of her six siblings.  Her major asset was a small studio unit in Whangarei.  She had no spouse or children.

Forensic evidence identified the note was in her handwriting.  Being a page torn out of a diary, it contained multiple crossings-out and additions, written over time with three different pens.  It was signed and dated.  There were no witnesses to her signature, as required by the Wills Act.

Mr Llewellyn said the note was no more than preliminary thoughts about a possible new will.  The two had parted amicably some thirty five years ago, with Mr Llewellyn remaining to work in New Zealand whilst Sue wanted to travel.

After learning of the 1988 will, and having never heard of a Mr Llewellyn, nor a Mr Biggs, in their sister’s life, Sue’s sisters tracked him down through Facebook.

The earlier 1988 will naming him a sole beneficiary should stand, Mr Llewellyn said.

The High Court may validate, as a will, documents not complying with strict Wills Act requirements if the document records ‘a settled testamentary intention.’

Justice Gardiner validated the note as her final will.

It was headed: ‘my will.’

In the years prior to her death, several of her siblings had prompted her to ensure she made a will.  In reply, she had told them details were on a piece of paper with her belongings.  She also told them who would inherit.

The note, matching her earlier description was found by her sisters when sorting her belongings after her death.  She had carried the note with her when shifting to a new studio unit in the year prior to her death.

The fact she signed the note with the same pen used to make the final crossing-out, indicated she had reached a final conclusion about disposal of her assets, Justice Gardiner said.

Mabbett v. Llewellyn – High Court (5.06.25)

25.137

Voluntary Adminstration: Rahman v. Shephard

 

Struggling financially, Wellington Combined Taxis was sold to Auckland Co-op Taxis for two million dollars, only after a fiercely fought battle between Wellington drivers which saw the High Court making novel use of Companies Act administration procedures effectively putting Wellington Combined on the block: giving drivers a choice between an Auckland takeover, or refinancing by current Wellington owners.

Wellington’s traditional taxi services have been in decline for nearly a decade, accelerated by covid-19 lockdowns, a downturn in the regional economy and the rise of online competitors such as Uber.  In the last five years, annual patronage fell fifty per cent from 1.2 million rides to less than 600,000.

Wellington Combined is asset rich, holding property with a market value of more than one million dollars; but suffers ongoing operating losses with accumulated losses for the five years ending 2024 totalling nearly three million dollars.

About one-third of taxi licences held by Wellington Combined drivers sit unused, non-operational because driving is not profitable.  Taxi licences which changed hands for $50,000 ten years ago, now struggle to find a buyer at $2000.

It was a 2020 decision by Wellington Combined directors to reduce monthly levies charged non-operational members that blew open the dispute.  A number of active drivers alleged this reduction was made primarily to benefit directors personally, an allegation they deny.

When Companies Act court approval was given a ginger group of active drivers to challenge directors’ selective levy reduction, with the company to bear all litigation costs, directors promptly put Wellington Combined Taxis Ltd into administration.

Companies Act administration is intended to allow an insolvent or ‘near-insolvent’ company to take stock, blocking ongoing legal claims, while future prospects are considered.

Administration envisages creditors voting on possible future action: restructuring or liquidation.

The legal novelty facing Justice Boldt was that Wellington Combined Taxis creditors were at no immediate risk of being left unpaid.  In fact, during the court hearing, Bank of New Zealand was sufficiently encouraged about Wellington Taxis’ financial prospects that it extended the company’s overdraft limit by a further $200,000.

In the High Court, Justice Boldt imposed a two-step process: first, a vote by Wellington Taxis driver/shareholders on two rival proposals put forward; then second, a vote by creditors on whatever option shareholders approved.

One proposal would see Auckland Co-op Taxis buying out Wellington Combined Taxis’ assets, offering franchise opportunities to Wellington drivers.

The other proposal envisaged a promised $1.5 million injection of cash from a new investor, election of a new board, and operating revenue improved with an increase in monthly levies charged drivers.

Recognising that the vagaries of voting, having some shareholders holding multiple taxi licences, might see both proposals getting more than fifty per cent support, Justice Boldt ruled that the proposal getting the greater level of support was to be put to creditors for further approval.

Companies Office records show a sale to Auckland Co-op at two million dollars was approved, with payment to be made in twelve monthly instalments.

Rahman v. Shephard – High Court (5.06.25)

25.136

Fraud: Parata v. R

 

High Court confirmed two years’ imprisonment for Lance Parata, convicted of a $57,500 invoicing fraud where he altered invoices for work done by his employer’s Helensville vehicle workshop, with payment diverted to his personal Westpac account. 

What stung for employer NP Dobbie Maintenance Ltd was that much of this offending took place during covid lockdowns at a time when Parata manipulated staff, denigrating Dobbie management.

The High Court was told that Parata, on a $80,000 plus salary package, altered customer invoices on over thirty occasions through a period of at least two years.

He subsequently disputed the amount taken, eventually pleading guilty to charges amounting to $57,400.

He appealed his two year sentence, claiming insufficient credit was given for both his guilty plea and his history of drug and alcohol abuse.

His guilty plea came eleven months after being charged and after multiple preliminary court appearances.  Further credit would have required an earlier guilty plea, Justice Downs said.

Justice Downs questioned the direct relevance of Parata’s substance abuse on the sentence imposed.  Money stolen was not spent solely on drugs and alcohol; it was spent variously on food, tools, and equipment, plus drugs and alcohol.

No further credit, beyond three months already allowed by the trial judge, was granted.  There was no evidence that substance abuse ‘caused’ the offending.

Parata has a criminal record.  The trial judge added two months to her sentence calculation for this prior criminal history.

Parata v. R – High Court (5.06.25)

25.135

Rating: Marsden City Partnership v. Whangarei District

 

Struggling to capitalise on its $8.6 million purchase of a stalled Marsden Point subdivision, John and James Sax’s Marsden City Ltd Partnership placed temporary fences and water troughs across the 82 hectare property, then stocked the land with cattle, claiming the subdivided land should be rated as farmland.

Whangarei Distict Council said no.  The High Court agreed.

Subdivided into 87 separate land titles with infrastructure vested in the local council, all roading, lighting and drainage are in place.

Sax investors bought the project from Westpac receivers in 2017 for $8.6 million.  Original developers defaulted on a $56 million Westpac loan.

The subdivision formed part of Whangarei District’s anticipated satellite city of some 40,000 people north of Ruakaka, near Marsden Point.  It was previously farmland.

Subdivided lots proved difficult to sell.

Sax’s Marsden City Partnership also found sales slow.

They claimed the land, reworked into nine paddocks, now operated as a farm and should be rated as such.

The court learnt that farming operations did not cover costs, and were unlikely to ever do so.

Between 75 and 150 head of cattle grazed on site.  Pasture cover was not ideal for livestock.

High Court stated the Sax’s arrangement was no more than an attempt to achieve de facto postponement of rates as a farm, while awaiting a rise in market interest before resuming marketing of individual subdivided lots.

Land Valuation Tribunal ruled previously that it was very unlikely the reworked subdivision would ever be on-sold as a single farming unit.

Marsden City Limited Partnership v. Whangarei District Council – High Court (5.06.25)

25.134

Auction: Tippen v. Spark

 

Auction of a Waikuku Beach property north of Christchurch was thrown into chaos when the winning bid was subsequently found to have come from a bidder being treated for a minor mental health condition who was unable to later pay the $606,000 bid price.

Accepting liability to pay damages for breach of contract, she disputed the amount claimed.

Ordered to pay about $230,000 damages, the High Court dismissed her claim that damages for loss on resale should be reduced because she bid at auction well beyond the then market price.

One valuer assessed the Waikuku property as being worth no more than $430,000 at time of the January 2024 auction.  One year later, it was sold to a new buyer for $440,000.

In the High Court, Associate Judge Paulsen ruled breach of contract damages are calculated to compensate the innocent party as if the contract had been performed. The promised contract price is relevant; market value of the land sold is not relevant.

In any event, the fact an underbidder was willing to offer $599,000 prior to her $606,000 closing bid indicates there was market interest close to the final contract price, Judge Paulsen said.

Damages totalling $230,000 included: a $110,400 loss on resale; real estate costs for the resale; and, interest for late payment calculated at the contract rate of sixteen per cent.

The court was told neither the vendors nor their real estate agent was aware of her mental health issues at time of the auction.

Tippen v. Spark – High Court (3.06.25)

25.133

Tax: Anthony & Summit Scaffold v. Inland Revenue

 

Inland Revenue’s power to negotiate instalment payment of tax arrears is not available as of right for delinquent taxpayers with a track record of poor compliance, the High Court ruled.  Integrity of the tax system is paramount.  Voluntary compliance with tax obligations by other taxpayers is threatened if concessions are seen to be unfair, arbitrary and a reward for past non-compliance, Justice Andrew said.

The High Court was told of lengthy dealings with Inland Revenue by Roshan Anthony and his Auckland business, Summit Scaffold NZ Ltd.

Back in 2018, Inland Revenue first sought to liquidate Summit for unpaid taxes.

Legal proceedings were discontinued after Inland Revenue agreed payment by instalments.  Within months, Summit defaulted on this agreement.

A further High Court liquidation application in 2021 by Inland Revenue was also halted after Summit made part-payment of arrears, with Inland Revenue agreeing to write off accrued penalties and interest.  

One year later, Summit failed to file tax returns.

In May 2024, Inland Revenue again filed for liquidation of Summit Scaffold claiming unpaid GST, PAYE and income tax totalling nearly $400,000.

Hearing of this liquidation application was put on hold, while Summit challenged Inland Revenue’s dismissal of its multiple further requests for payment by instalments.

Evidence was given of Inland Revenue concerns over the level of borrowings taken out of the company by Mr Anthony and steps he had taken to transfer property out of his name into the name of his spouse.

Inland Revenue told the court Mr Anthony was taking cash out of his company at a time when there was sufficient available for Summit to meet tax debts.  Mr Anthony declined Inland Revenue’s suggestion that an instalment plan might be approved if mortgage security were given over property recently transferred to his spouse.

Seeking High Court judicial review of Inland Revenue’s refusals, Mr Anthony and Summit Scaffold claimed there was a failure to properly apply discretionary powers in the Tax Administration Act.

The Act does not require Inland Revenue to accept each and every instalment proposal solely on the basis this would achieve a better recovery than putting that taxpayer into bankruptcy or liquidation, Justice Andrew said.

Decisions about individual taxpayers must be balanced against broader public interest considerations.

Separately, a March 2024 District Court default judgment held Mr Anthony liable to Inland Revenue for income tax of some $180,000 unpaid for tax years 2019 – 2023.

Inland Revenue subsequently accepted his proposal to pay this debt in full by instalments over two months.  The High Court was told this personal tax debt has been paid in full.

Mr Anthony’s request that the earlier District Court default judgment now be set aside was refused.  Inland Revenue acted reasonably and in compliance with the law in taking legal action against Mr Anthony to force recovery of tax due, Justice Andrew ruled.

Anthony & Summit Scaffold NZ Ltd v. Inland Revenue – High Court (30.05.25)

25.126

Hobson Towers: Body Corporate 172108 v. Cummins

 

Long-running dispute over remediation costs for Hobson Towers in Auckland’s central business district ended with the body corporate bankrupting Wellington-based Robert James Cummins over unpaid litigation costs, bringing to a close a fifteen-year argument over allocation of repair costs for his twelfth-floor apartment held in the name of Manchester Securities Ltd, itself in liquidation insolvent.  

Plans to remediate Hobson Towers kicked off in 2009, with Mr Cummins’ Manchester Securities accepting responsibility for work on its top floor apartment.

Over fifteen years later, this work is not complete, compounded by rounds of litigation arguing what part of Manchester’s costs may or may not be a body corporate expense.

Manchester Securities was forced into liquidation in 2020 for unpaid body corporate fees.

It currently owes in excess of one million dollars.

Participating in several unsuccessful appeals to stop this liquidation, Mr Cummins was ordered in 2021 to contribute $32,800 towards body corporate costs.  Four years on, he was bankrupted following a failure to pay these costs.

The High Court was told Mr Cummins eventually came to owe Hobson Towers body corporate more than $168,000 in litigation costs, following further unsuccessful litigation.

The court dismissed his last ditch steps to avoid bankruptcy.

Mr Cummins claimed that through Manchester Securities he had several valid cross-claims against Hobson Towers body corporate.

Associate Judge Skelton ruled these cross-claims lack substance.

Even if Manchester Securities were to succeed in its claims, this would be of little financial benefit to Mr Cummins, he pointed out.  A multi-party agreement between Manchester Securities’ liquidator, secured creditors and the body corporate, sees Mr Cummins well down the list of claimants entitled to any payout.  

Mr Cummins claimed bankruptcy was pointless; he has no assets of substance.  

Body Corporate said there was no proof Mr Cummins has no assets.

It was in the public interest to have Insolvency Service investigate Mr Cummins personal financial position, Judge Skelton ruled.

Mr Cummins plea that special circumstances meant bankruptcy should be refused was also dismissed.

There has been a protracted and convoluted dispute since 2009 over repair of Hobson Towers in which Mr Cummins has played a central role, Judge Skelton said.  The legitimate interests of other apartment owners are being grossly prejudiced.  Ongoing disputes, litigation, the failure to complete necessary remedial work for level twelve, and now a delay in determining his bankruptcy are prejudicial to their interests, he said.

Body Corporate 172108 v. Cummins – High Court (30.05.25)

25.132

 

Post judgment note: Companies Office reports filed by Manchester Securities’ liquidator state that he has been unable to arrange funding for completion of work on Hobson Towers level twelve and has abandoned the project.

 

It is common for bodies corporate to assume control of apartments abandoned by their owners.

Investment: Preiss v. Vermeulen

 

Philatelists Karl and Louise Vermeulen sued stamp dealer Jaques Preiss for $234,000 on his ‘no questions asked’ refund policy after expert evidence suggested some of the stamps sold were fakes and forgeries.

Mr Preiss argued, unsuccessfully, that a time limit applied and that the Vermeulens had not complained within a reasonable time.  

The High Court was told they purchased thousands of stamps from Mr Preiss over a fifteen month period from 2021.

Initial purchases were through Mr Preiss’ TradeMe account.  His advertised terms of sale offered a ‘no questions refund … Your satisfaction is what I care most about.’  Later sales moved off the TradeMe platform, made directly with the Vermeulens.

They were later contacted by two expert philatelists who advised that Mr Preiss’ offerings were ‘highly suspect’ and that higher value stamps purchased were potentially fakes or reprints.

When the Vermeulens demanded a refund, Mr Preiss denied ever knowingly selling forgeries.  He required proof of forgeries before making any refund.

The Vermeulens said the cost of having individual stamps verified was prohibitive, with thousands of stamps to be checked at a quoted cost of $75 per stamp.

Associate judge Cogswell ruled the Vermeulens were entitled to a refund under terms of Mr Preiss’ guarantee.

This guarantee applied to stamps sold both through his TradeMe account and subsequent direct sales.  Their history of dealings meant the guarantee given earlier on TradeMe carried over, by inference, into their subsequent direct dealings.

The refund guarantee was open-ended.  There was no time limit.

This reduced the perceived risk of dealing with an online vendor, Judge Cogswell said.

Even if claims under the guarantee had to be made within a reasonable time, the Vermeulens had done so, he said.  They acted promptly once warned some of the stamps were suspect.

Preiss v. Vermeulen – High Court (30.05.25)

25.131

Liquidation: Kang v. Jan

 

Responding to Liquidation Management Ltd’s offer online of specialist insolvency advice, company director Judy Kang later found that Liquidation Management director Imran Khan is a disqualified insolvency practitioner.  She alleges Mr Khan engineered appointment of Mohammed Jan as liquidator of her insolvent companies, with Mr Khan improperly managing these liquidations from behind the scenes. 

In the High Court, Associate Judge Lester ruled there was no evidence that Mr Jan was failing doing his job properly, but he did order Mr Jan file later in court full details of all work charged to the liquidations by Mr Khan and his company.

Three companies owned by Ms Kang, also known as Ngoc Giau Kang, are in liquidation, with two of these companies owing Inland Revenue more than $1.5 million.

Ms Kang told the court she had a September 2024 telephone conversation with Mr Khan following her earlier online contact.  She described him as appearing thoroughly professional, claiming to have had twenty years insolvency experience and having completed over two hundred company liquidations.

She says Mr Khan subsequently created a sense of urgency and panic, making numerous requests for early signature to resolutions putting her companies into liquidation.  As it turned out, these resolutions appointed Mr Jan as liquidator.

Later learning that Mr Khan has been disqualified from acting as an insolvency practitioner, she tried unsuccessfully to have Mr Jan removed, saying Mr Jan lacked independence, alleging Mr Khan was pulling the strings.

Judge Lester ruled Insolvency Practitioners Regulation Act does not govern those merely giving financial or business advice.  While disqualified to act as an insolvency practitioner, the Act did not stop Mr Khan giving general pre-liquidation advice about possible business strategies.

All contact with Ms Kang, after her companies were put into liquidation, came from Mr Jan directly.

Whilst Mr Jan then subcontracted much of the work to Mr Khan’s Liquidation Management Ltd, there was no evidence that Mr Jan was not bringing his independent judgment to liquidation decisions, Judge Lester ruled.

Separately, Ms Kang laid a complaint about Mr Jan to the Institute of Chartered Accountants professional conduct committee.  While stating it is unusual for a liquidator to have no contact with a potential client before appointment, the committee said the evidence was that subsequently Mr Jan became actively involved in Ms Kang’s companies’ liquidations.

Kang v. Jan – High Court (29.05.25)

25.130

Ormiston Rise: Arena Alceon v. Grant

 

It was attack and counter-attack in a war between shareholders with high profile insolvency specialist Damien Grant siding with shareholder Clinton Webber who was pushed out of a struggling South Auckland residential property development at Ormiston Rise while Webber’s former financial partner and fellow shareholder Arena Alceon then sued Grant, claiming he failed to act properly, lacking independence in going after Arena.

In 2021, US financier Arena Alceon put the Ormiston Rise development into receivership, with the part-finished project sold to a related company, cutting out Webber’s Foundation Developments Ltd from any share in potential profits.

The High Court was told Mr Webber then met with insolvency specialist Mr Grant and between the two they put in place a plan to put Ormiston Rise into liquidation and then challenge Arena’s use of receivership to gain full control.

Their first step was to put Ormiston Rise into Companies Act administration.

The High Court was to later rule Mr Grant lacked professional independence when acting for Mr Webber and failed to follow correct statutory procedures when putting Ormiston Rise into administration, part of a tactically necessary first step prior to liquidation.

Despite these false steps, Associate Judge Lester did not remove Mr Grant from his current position as liquidator of Ormiston Rise, ruling any monetary penalties against him will be dealt with in the liquidation wash-up.

The High Court was told of tense meetings between Mr Webber and Arena Alceon in 2021, resulting in shareholder/creditor Arena calling up its loan.

Following a lengthy meeting between Mr Webber and Mr Grant at an Auckland café, it was decided to put Ormiston into administration.

This could be achieved easily, using a voting majority at board level now held by interests associated with Mr Webber.

Two Arena-appointed directors had previously been removed from the board.

The philosophy behind Companies Act voluntary administration procedures is to create a brief breathing space, allowing creditors to determine whether a company can be saved, or should be put into liquidation.

Insolvency practitioners acting as administrators are required to act impartially, exercising professional independence.

Associate Judge Lester was to later rule that Mr Grant acted as if Mr Webber were his client.

Companies Act administration was a necessary first step towards liquidation of the Ormiston Rise companies; Mr Webber and his associates did not have sufficient voting power as shareholders to put these companies directly into liquidation.

Mr Grant’s lack of independence was evidenced by steps taken ‘touting’ for votes from Ormiston creditors who were likely to support a plan for creditors to support the shift from administration to liquidation.  There was evidence of Arena’s rights to vote as a creditor being disputed.

There was no adequate disclosure of the fact Mr Webber was bankrolling his fees.

Judge Lester said it was clear administration was intended to later gain leverage over Arena with an internal email sent by Mr Grant indicating it was a strategy designed to ‘frighten the horses.’

Mr Grant billed Ormiston $180,000 for work done during administration, prior to Ormiston going into liquidation.  Arena questioned this level of fees charged for some five weeks work on Companies Act administration for a single-asset company where that asset had already been sold by the Arena-appointed receiver.

Judge Lester said the level of work done was more applicable to a liquidation investigation, ruling this was further evidence of Mr Grant lacking proper independence and acting for the benefit of Mr Webber.

With separate Ormiston litigation pending over Arena’s alleged misuse of the receivership process to maximise its return from the Ormiston Rise project, Judge Lester ruled Mr Grant as liquidator is to use external legal advisers, not in-house lawyers, for any further legal advice required in this dispute.

Mr Grant’s entitlement to fees charged for the five week period of administration and for fees charged to date for in-house legal advice are to be reviewed when the Ormiston Rise company liquidations are complete, Judge Lester said.

In-house lawyers at Mr Grant’s Waterstone insolvency practice billed for work done as if they were an external law firm.

Arena Alceon NZ Credit Partners LLC v. Grant – High Court (28.05.25)

25.128

Perjury: Slavich v. Hamilton District Court

 

Convicted of fraud nearly twenty years ago, Hamilton accountant John Kenneth Slavich’s attempts to bring a private prosecution alleging he was wrongly convicted because of lies told by a witness foundered because of strict rules governing the burden of proof for perjury.  Conviction for perjury requires evidence from at least two different sources.

In 2006, Slavich was convicted on charges involving fraudulent mortgage transactions; sentenced to 27 months’ imprisonment and ordered to pay $60,000 in reparations.

He has always protested his innocence.

One of the frauds centred on a $75,000 loan secured over a Morrinsville property with part of the proceeds paid across to a company associated with Slavich.  Owner of the Morrinsville property knew nothing of the transaction carried out in his name.

At trial, Slavich claimed he believed at all times that he was acting on behalf of the real owner, having met him at a Burger King restaurant.  The trial judge ruled that Slavich must have known that the person he met was a Mr Leslie Orchard, impersonating the true owner and a major participant in the two frauds.

A 2020 Stuff investigation later threw doubt on how many people were present at this meeting, a critical issue at the earlier criminal trial.

Buoyed by this investigation, Slavich initiated a private criminal prosecution against Mr Orchard for perjury, alleging he lied at the criminal trial some fourteen years previously.     

Criminal Procedure Act requires private criminal prosecutions be filtered, with a District Court judge reviewing the proposed evidence to ensure there is sufficient evidence to warrant a trial.

Slavich’s application was rejected.

In the High Court, Justice Becroft ruled Slavich’s application was rejected for the wrong reasons, but the proposed private criminal prosecution could still not proceed.

Convictions for perjury require corroborating evidence.  Slavich himself alleges Mr Orchard committed perjury, but more than evidence from one witness is required.  And this evidence must come form those knowing first-hand whether Mr Orchard’s gave false evidence.

Conversations written up by the Stuff journalist do not suffice.  These statements are hearsay evidence; second-hand evidence, being what the journalist heard from someone else.

First-person evidence is preferred as the best source of truth.

Justice Becroft suggested Slavich might consider two alternatives: ask Police to re-open their investigation; or request an investigation by the Criminal Cases Review Commission.

Slavich v. Hamilton District Court – High Court (28.05.25)

25.129

Body Corporate: Parkinson v. Body Corporate 62124

 

Continuing dissension within a dysfunctional Wellington four-unit residential body corporate, now under control of a court-ordered administrator, has seen two unit owners ordered to pay $21,600 administration costs because of time spent dealing with their complaints described as meritless and unnecessary.

Mr Brendan Gilhooly and Mr Pieter Bos own units at the Hankey Street development in Wellington suburb Mt Cook.  They were penalised for their unhelpful intervention in attempts to sort out ongoing wrangles over maintenance and repair costs.

Built in the 1980s of painted cedar and plaster, ongoing disputes over necessary maintenance were compounded by a dispute over liability for repairs to a boundary retaining wall.

Two years ago, the High Court appointed an administrator to take control of the body corporate.  The long-standing owners could not agree on what maintenance should be carried out, or even agree on who should chair their body corporate.

The court appointment recognised an administrator would struggle to get unanimous approval from owners on future plans; he was authorised to isolate costs incurred dealing with meritless issues raised by any apartment owner, with power to charge these costs directly to the owner.   

Unit Titles Act enables recovery against apartment owners ‘at fault.’

Parkinson v. Body Corporate 62124 – High Court (27.05.25)

25.127

Inheritance: re Estate Pita Pani Cooper

 

An apparent error on a death certificate led to a practical impossibility: how do you prove someone never existed?

Given the high standard of proof required for evidence in court, it is a logical impossibility to prove a negative.  No evidence can be called to prove something didn’t happen, or that something or someone does not exist.  Circumstantial evidence can suggest this is the case, but that is not conclusive.

Proving a negative is a particular problem with inheritances; witnesses who could otherwise provide valuable evidence may be dead.

Yet some finality is necessary; enabling distribution of estate assets, allowing following generations to get on with their lives.

The Public Trustee sought High Court approval to finalise distribution of the estate of Pita Cooper, who died in February 1986.  His spouse pre-deceased him.

Mr Cooper died without leaving a will.

With no surviving spouse, intestacy rules decree that his net assets be divided equally between his children.

The only record held by the Public Trust was Mr Cooper’s death certificate, stating he had five children.

One died before his father.  Having left no children, this branch of the family received no inheritance.

Three other children were known: Pene, Pita and Dolly.  They had no knowledge of a fifth child, supposedly another daughter, according to Mr Cooper’s death certificate.

The Public Trust distributed a one quarter share to each of the known children, holding back the fourth portion, amounting to $165,500 in 2025, in trust for the fifth child, yet to be found.  

The High Court was told of Public Trust employing a genealogist to carry out an extensive historical search.  This included searches of online social media.  Members of extended family were contacted, seeking information about existence of an unknown fifth child.

No trace was found.

Justice Grice stated all reasonable steps had been taken to identify a fifth child.  It appears there may have been a mistake on the death certificate, she said.

Using Trust Act powers, Justice Grice ordered the remaining $165,500 be divided three ways between the known surviving children.

re Estate Pita Pani Cooper – High Court (23.05.25)

25.125

Reckless Trading: Callin Auto NZ v. Fujisawa

 

Promoted from the shopfloor in Japan to sole director of New Zealand sale operations, Yujiro Fujisawa was ordered to pay $1.01 million damages for reckless trading, following trading losses over a ten year period.

The High Court was told Callin Auto New Zealand Ltd was incorporated in 2012 as a wholly-owned subsidiary of a Japanese company exporting used cars.

Mr Fujisawa was appointed director.  He had previously been a student in New Zealand.

Evidence was given that Callin New Zealand began slipping on deadlines for making payments due Japan after about two year’s operations.  Mr Fujisawa become increasingly difficult to contact.

By mid-2016, he had stopped sending monthly sales reports to head office in Japan.

With payments falling further behind, staff from head office met with Mr Fujisawa in New Zealand, negotiating a payment schedule requiring fifty per cent of outstanding debt to be paid immediately, the balance by monthly instalments.  This agreement was not honoured.

Mr Fujisawa did not respond to head office demands he make Callin’s New Zealand bank statements available.

In 2022, Callin was put into liquidation by its Japan shareholder.

This was some two years after Mr Fujisawa resigned from the company.

Investigations by its liquidators found Callin New Zealand had been insolvent for much of its existence.

It held no unsold cars at date of liquidation.  Debts owed to Bank of New Zealand, Inland Revenue and Japan exceeded one million dollars.

Liquidators identified some $255,400 spent on what appeared to be entertainment expenses: restaurants, bars and golf.  Mr Fujisawa said these were legitimate business expenses, hosting clients.

Justice Johnstone held Mr Fujisawa personally liable for company debts totalling $1.01 million.  These were incurred in Callin’s name at a time when Mr Fujisawa had no reasonable belief that Callin would pay, he ruled.

Mr Fujisawa did not file a statement of defence.  He did not appear in court to defend the claim.

Callin Auto New Zealand Ltd v. Fujisawa – High Court (21.05.25)

Transport: TNL International v. Bullocks Freightmasters

 

For NZX listed Move Logistics it was a New Year nightmare: one hundred containers of steel pipes imported from China stacked up at Port of Tauranga in early 2022 incurring demurrage and detention charges totalling $529,000 in part because the customer could not take delivery until after its holiday shutdown.  

A three-way dispute followed over who should bear these increased costs.

Primary responsibility for importation lay with Bullocks Freightmasters International, a freight forwarding company based in Fremantle, Western Australia.

Bullocks engaged TNL International Ltd in New Zealand to handle importation through Tauranga, with TNL in turn subcontracting Move Logistics to deal with the final leg, shifting containers from the port.

The High Court was told the late start forced on Move Logistics had knock-on effects, leaving it unable to remove the last containers until mid-March.

Move Logistics and TNL International each claimed against the other: Move saying it was owed $250,000 because shipments did not arrive on dates promised; TNL saying Move was responsible for detention fees charged for late removal of containers from the Port.  Each refused to pay invoices sent to the other.

In June 2023, each agreed to write off claims made against the other.

TNL then sued Bullocks Freightmasters, claiming the Australian freight-forwarder is liable for demurrage and detention costs.

Bullocks denies liability, stating Move Logistics should be the one to pay.

Move failed in its High Court application to have Bullocks claim struck out.

Associate Judge Taylor ruled Bullocks is entitled to its day in court, with its claim that Move Logistics’ negligence led to $529,000 increased port charges.

This negligence claim is yet to be heard.

The critical legal issue will be questions of ‘causation,’ Judge Taylor signalled; why was there a delay in moving containers from the Port?

TNL International Ltd v. Bullocks Freightmasters International Proprietary Co Ltd – High Court (20.05.25)

21.121

Asset Forfeiture: Commissioner of Police v. McMillan

 

Claims by travel broker Jitesh Mistry that his $50,000 payment six years ago to now convicted drug dealer Kenny Leslie McMillan was a part of a legitimate business scheme to import cars cut no ice with Justice Boldt, refusing Mr Mistry’s application for repayment out of McMillan assets seized as proceeds of crime.

In 2021, McMillan was sentenced to 18 years imprisonment on charges of methamphetamine supply.  All his assets were seized as part of a Criminal Proceeds (Recovery) Act application, later sold to pay down a court ordered profit forfeiture order.

While McMillan protested that Police grossly exaggerated profits made, a $2.7 million profit recovery order remains outstanding.

McMillan claims he was simply part of a chain couriering drugs through the North Island.  Police allege he was a wholesaler.

In 2025, Jitesh Mistry applied for payment of $50,000 plus interest out of cash realised from sale of McMillan’s assets.  This was a loan made to McMillan, remaining unpaid, he said.

Mr Mistry provided Police with written loan documentation dated March 2019 setting out a $50,000 on demand loan with interest payable at one per cent.

In court, Mr Mistry said he had been acting as a travel broker for McMillan since 2014.  A casual conversation identified their common interest in cars.  The loan was part of an agreement to go into business importing damaged cars from Australia, he said.

McMillan admits he received $50,000 from Mr Mistry.

Justice Boldt described the supposed business arrangement as implausible.

Mr Mistry could provide no details of how their business relationship progressed.  Mr Mistry claimed at time of the loan he did not know where McMillan lived, or of any further business interests McMillan held.  There was no further documentation, beyond the loan.

A loan expressed at one per cent interest did not fit with Mr Mistry’s claimed profile as a savvy investor; putting funds on deposit at a bank would have obtained a better return.

Justice Boldt ruled the loan document was not genuine.

Mr Mistry’s application for repayment was dismissed.  He was ordered to contribute towards Police costs incurred responding to his claim; payment of $1700 ordered.

Commissioner of Police v. McMillan – High Court (12.02.25 & 20.05.25)

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