Lease: Stills v. McCormack

 

Arrears of rent and failure to challenge a rent review cost the Stills family rights to renew their lease of land at Little Akaloa on Banks Peninsular, losing rights to use a rudimentary bach on the property after the family’s near fifty year occupation.

Andrew Stills argued their family was victim of a stitch-up; claiming rights to purchase were ignored, and further alleging fraud in a mix-up over rights of way giving access to their bach on Lukes Road.

The High Court was told land on Lukes Road at Little Akaloa was bequeathed to the Anglican Church in the 1950s.  Subdivided lots were then leased out by the Church on renewable twenty-one year leases.

The Stills family came to occupy 36D Lukes Road in 1975.  Their leasehold interest passed down through the generations.

Tensions arose within the Stills family; some wedded to the family history, others interested in selling to neighbours Robert and Elizabeth McCormack.

The McCormacks have a holiday home on a neighbouring site.  Mr McCormack founded Christchurch real estate firm Harcourts Grenadiers.

Matters reached a head following the McCormacks 2021 purchase of the Anglican Church’s freehold interest in 36D Lukes Road.  The Stills current twenty-one year lease for 36D was up for renewal in March 2022.

Their rights of renewal were disputed.

Andrew Stills led the charge, arguing unsuccessfully in the High Court that the Church had ignored what the Stills claimed was a right of first refusal should the Church sell its freehold.

Evidence was given that the McCormacks paid $400,000 to purchase the freehold for 36D.  The Stills offered $160,000.

Mr Stills argued there had been duplicity between the Church and the McCormacks in that earlier land title registrations removed any record of the Stills’ then existing legal right of access through their neighbour’s land to their bach at 36D.

With no enforceable legal access, the land at 36D was worth nothing, he said. Rent due should now be zero, Mr Stills claimed.

Evidence was given that these legal rights of access have been reinstated, after valuers pointed out an obvious error in not carrying forward an easement on the title years previously, when new land titles were issued.

There was no evidence of fraud, Justice Osborne ruled.

The Stills family made no formal response to the McCormacks’ 2022 rent review, which offered a further twenty-one year lease renewal at an annual rental of $28,080.  Capital value of 36D was assessed at $432,000 in August 2021.

Rent under the then current twenty-one year lease was in arrears.  Mr Stills said this was because invoices were sent to the wrong email address.

In the High Court, Justice Osborne said it is the leaseholder’s responsibility to ensure rent is paid, regardless of whether invoices are received or not.

Being late in paying rent, plus a failure to engage in the rent review process, meant the Stills’ lease expired in March 2022, without renewal.

The Stills became trespassers by remaining in possession.  The McCormacks, as owners of the freehold, were entitled to take possession of 36D, Justice Osborne ruled.

The Stills were ordered to pay a $60,450 occupation rent for the period running from the March 2022 expiry of their lease.

Stills v. McCormack – High Court (17.08.23 & 22.07.25)

25.167

Cryptocurrency: re Digital Asset Exchange

 

With cryptocurrency exchange Dasset in liquidation, and users facing an apparent six million dollar shortfall, liquidators have High Court approval to treat the $600,000 remaining as trust assets to be divided pro rata between unpaid customers.  Co-founder Stephen Macaskill has gone to ground; believed now to be overseas.  A Serious Fraud Office investigation into Dasset operations is underway. 

Digital Asset Exchange Ltd, trading as Dasset, was established in 2017 as an online trading platform with the stated aim of being a custodial trustee, holding individual currency and crypto-currency accounts on behalf of customers.

Dasset offered to action trades on behalf of customers, promising transactions would be recorded under each users name.  This did not happen.

Liquidators have found that Dasset simply dumped all currency and crypto-currency holdings into one bucket.  Poor record keeping meant specific assets could not be identified as held on behalf of any one customer.

Dasset’s liquidators have identified unauthorised and unrecorded withdrawals totalling some five million USD were actioned in the three years prior to Dasset’s 2023 liquidation.

A further complication facing liquidators is that customer trades were executed by Dasset through a master account held with third party provider Bittrex.  Mr Macaskill alone holds the digital master key.

Operations by US-based Bittrex are currently being wound down.  Its crypto-currency exchanges in Lichenstein and Bermuda are both in liquidation.

The High Court was told Dasset liquidators suspect that company operations collapsed at some point into a ponzi scheme.  Customers asking for their positions to be cashed out were paid from new money coming in, leaving user accounts unreconciled.

Dasset has about 5000 registered users.

The High Court approved liquidators’ application for all funds recovered to be held in one pool, with users to be paid pro-rata on the basis of how much they are owed.

Poor record keeping by Dasset meant this was the only pragmatic approach, Justice Gendall ruled.

These funds, currently totalling some $600,000, are trust assets, not available to meet claims by Dasset’s trade creditors, he further ruled.  Wording of Dasset’s contracts with customers promised their money would be held separately, in trust, with Dasset as custodian.

Liquidators have given Dasset’s registered users until 10 November 2025 to file proof of how much they are owed.  Late applications risk missing out on any pro rata payout.

re Digital Asset Exchange Ltd – High Court (18.07.25)

25.164

Bankruptcy: Greig v. Official Assignee

 

Described on Precision Real Estate’s website as selling real estate since 1989 and having an impeccable reputation, David Greig remained bankrupt for fourteen years before the High Court in 2025 granted his discharge from bankruptcy, subject to a period of court monitored financial supervision.  He disputes Insolvency Service warned him there was no exit from bankruptcy until he filed a statement listing all assets and liabilities.

David Robert Greig was bankrupted by Inland Revenue in 2011 for unpaid tax debts of $152,300.  All up, creditor claims totalled $222,500.  Unsecured creditors received nothing.

Insolvency Act allows automatic discharge from bankruptcy after three years.  This three year period runs from the date a bankrupt files with Insolvency Service a statement of affairs listing all assets and liabilities.

Insolvency Service told the High Court Mr Grieg did not file his statement of affairs until December 2023, and then only after an Insolvency Service prompt nearly twelve months previously that he remained bankrupt until this information was supplied.  Insolvency Service told the High Court Mr Greig had ignored previous reminders.

He denies receiving earlier reminders.  Mr Greig says he presumed bankruptcy ended in 2014, three years from his 2011 bankruptcy adjudication.

The High Court was told Mr Greig travelled to Australia six times during his bankruptcy, in breach of Insolvency Act rules prohibiting overseas travel without Insolvency Service approval.

In both 2015 and 2022, Inland Revenue asked Insolvency Service to confirm that Mr Grieg as an undischarged bankrupt had Insolvency Service approval to be self-employed.  He was claiming to be self-employed for tax purposes.  The High Court was told he did not have approval.

Inland Revenue had become concerned about the level of tax debts being run up by Mr Greig.  He was not responding to messages and emails, it said.

The High Court was told there are currently substantial tax arrears unpaid.

Having belatedly filed a statement of affairs in 2023 to comply with his 2011 bankruptcy, Mr Greig then sought High Court approval for an early discharge from his bankruptcy otherwise timed for automatic discharge in late 2026.

Associate Judge Cogswell approved an Insolvency Act conditional discharge agreed between Insolvency Service and Mr Greig.

Whilst no longer bankrupt, Mr Greig when working as salesperson with Takapuna-based Precision Real Estate must keep tax payments up to date, must bank tax withholding payments and GST obligations to a separate bank account and must have his financial affairs monitored by an independent accountant.  This accountant must report every six months to the court and to Insolvency Service.

These special conditions expire in December 2026.

Greig v. Official Assignee – High Court (18.07.25)

25.166

Insurance: Work v. IAG

 

The High Court dismissed Peter Work’s insurance claim on grounds that he remotely triggered an electrical circuit primed to start the fire which destroyed his Wellington rental.  His appeal to review potential causes for the fire was dismissed by the Court of Appeal.

Technical evidence about residue left at seat of the blaze and operation of circuit breakers were at issue.

Ten years after the 2013 house fire, the High Court ruled IAG Insurance was justified in refusing payment.  Mr Work deliberately triggered the fire and then dishonestly claimed it was an accident, the trial judge decided.

Mr Work is a mechanical engineer.  He was in Whanganui on night of the fire.

Evidence was given of fire investigators identifying seat of the blaze in a garage converted into a bedroom, near a computer, printer and standing lamp.

IAG was suspicious.

Mr Work was under financial pressure.  He did not have sufficient funds to remediate the rental property before putting it on the market.  Power to the property had been disconnected, since it was vacant, yet just prior to the fire, power was reconnected to two circuits within the house connected to the room where the fire started.

Analysis of Mr Work’s computer found he had purchased software allowing remote logins to a linked computer in the weeks prior to the fire.

The trial judge accepted evidence from IAG that Mr Work triggered the fire from his Whanganui computer with a command causing the computer print function to activate in Wellington, and with it have the printer pull out a piece of pre-placed Sellotape opening an electrical circuit linked to a nearby lamp, all designed to cause a fire.

Witnesses saw the house on fire within fifteen minutes of the print function being executed remotely.

IAG suspicions were further heightened when Mr Work belatedly admitted to the Sellotape-rigged print mechanism, explaining it as a prank.  It was intended to surprise family members when the light turned on, apparently spontaneously.  The fire was not intended; it was an accident, he claimed.

The trial judge dismissed this explanation as an unbelievable fabrication, seeking to explain away damning evidence unearthed by insurance investigators.

Mr Work claimed in the Court of Appeal that investigators drew the wrong conclusions from fire residue.

The Court of Appeal ruled it was too late to challenge this evidence.  At the High Court trial, Mr Work knew the substance of the investigators’ theory of how the fire started.  That was the time to challenge this explanation.

Work v. IAG New Zealand Ltd – Court of Appeal (18.07.25)

25.165

Estate: Barry v. Bradshaw

 

With Brian Nikora leaving an estate valued at a little under $230,000 his widow from a fifty-five year marriage challenged Family Protection Act claims against the estate made by two daughters from his previous relationship.  The Court of Appeal reviewed how all claims could be accommodated, after the High Court effectively awarded Brian’s entire estate to his daughters.

Brian died in 2021.  He had been in rest home care for the last thirty months of his life.

His only asset of note was his half share in the home where he had lived with now widowed Sally Barry.  Under his will, this half share passed to Sally, giving her full ownership.  The two had no children.

The court was told Sally had provided most of the income during their marriage, and had used her redundancy payment to pay off loans.

Family Protection Act claims were made against Brian’s estate by his two daughters from an earlier relationship: Karen and Annmarie.  They did not receive any benefit under their father’s will.

The court was told Brian had minimal involvement in their lives.  His relationship with their mother ended in the 1960s, before the younger daughter was born.  He stopped paying maintenance within a few years.

Mother, and the two daughters, moved to Australia about a decade later.

Children can make a Family Protection Act claim against a parent’s estate where the parent’s will failed to provide ‘proper maintenance and support.’

Courts have given this phrase a double meaning: imposing a moral obligation on parents to recognise parent/child relationships in some manner on their death; plus, requiring parents to assist, on death, an improvident child in financial need.

Judges have a wide discretion as to how these potentially conflicting interests might be reconciled, whilst still seeking to avoid any wholesale re-writing of a person’s will.

This wide discretion has led lawyers to caution clients that the outcome of any Family Protection Act claim can depend on the ‘state of the judge’s digestion.’

In the High Court, Karen and Annmarie were each awarded their father’s half share of the home, with widow Sally given a life interest in this half share allowing her to remain in occupation of the family home.  In addition, the judge awarded the two daughters $80,000 each, to be paid on Sally’s death, or sale of the home, whichever occurred earlier.

The Court of Appeal overturned this ruling: allowing widow Sally to retain full ownership of the home; removing any payment to Karen; and awarding a reduced bequest of $30,000 to Annemarie.

Looking ahead, the court said Brian’s estate is relatively modest and his widow’s position requires protection.  Brian’s primary duty was to ensure his widow had somewhere to live following his death, particularly given the length of their relationship.

Sally was 77 at date of her husband’s death.  It is likely most, if not all, of the equity in their home might be needed to later buy into a retirement village or to pay for rest home care, the court said.

The court was told daughter Karen and her husband are comfortably off financially.  She had occasional contact with her father, then regular social contact in his latter years, through telephone calls and facetime messaging.  She and her husband had made several visits to see her father New Zealand.

The Court of Appeal ruled that whilst Brian had failed in his moral duty to recognise daughter Karen in his will, the modest size of his estate and the number of competing claims precluded her receiving even a modest Family Protection Act award.

The court was told Annemarie, by contrast, requires financial help.  She is divorced, living on an unemployment benefit and in poor health.

She had limited contact with her father after shifting to Australia.  She only learnt of her father’s illness prior to his death through her own daughter, who was then living in New Zealand.

Her receipt of the court-ordered $30,000 Family Protection Act compensation is delayed until the earlier of Sally’s death or sale of the home.

Barry v. Bradshaw – Court of Appeal (17.07.25)

25.162

Estate: re Estate Thomas Southgate

 

A High Court order removed Annie Cameron from control of her de facto spouse’s estate after allegations she left the estate insolvent by drawing down funds without paying estate debts.  Wellington lawyer Bryce Williams was appointed to investigate.

Children of the late Thomas Southgate allege Annie hopelessly mixed up the assets of their late father and his family trust.

Annie is sole beneficiary of Thomas Southgate’s estate.  He was her de facto spouse.  Thomas died in 2024.

Her claim to also be a beneficiary of his 2002 family trust is disputed.  Thomas’ children Janene and Todd are named beneficiaries.

It is claimed Thomas Southgate’s estate owes his family trust some $220,000.

The High Court was told the 2002 family trust was set up to benefit Thomas Southgate’s children and grandchildren.

His home on Convent Road in Otaki was transferred to the Trust.

The following year Thomas met Annie.  She joined him at Convent Road.

Convent Road was sold by the Trust in 2005, to Thomas and Annie as joint owners.

Trust beneficiaries say no money changed hands.  They say the purchase price was left as a debt owed the Trust; a debt which has never been repaid, they claim.

The High Court was told the Trust as at March 2023 had assets totalling nearly $940,000, of which $220,000 is an estate debt owed the Trust.

Since Thomas Southgate’s death in 2024, his children have been unable to get clear answers from Annie about payments and withdrawals made through both the Trust’s and the Estate’s bank accounts.

The Estate currently holds about $25,000 cash.  It is insolvent, unable to repay $220,000 owed the Family Trust, trust beneficiaries Janene and Todd allege.

In the High Court, Justice Grau said an inherent conflict of interest exists.

Annie, as executor of the Thomas Southgate estate, is being asked to account for her actions.  At the same time, she is being asked to account for her disputed involvement in Trust financial activities when it is claimed the Estate owes the Trust $220,000.

Independent oversight is required, Justice Gau ruled.

Lawyer Bryce Williams was appointed administrator of Thomas Southgate’s estate, given authority to uplift the will and to investigate prior estate transactions.

Janene and Todd were critical of Annie’s obstructive behaviour, forcing a court application for her removal.  In the end, Annie did not appear in court to challenge the need for an independent investigation.

re Estate Thomas Edrich Southgate – High Court (17.07.25)

25.163

Charity: re NZ Medical Association

 

At a time when all parts of the health sector are lobbying for increased funding, the High Court was told a medical charity set up to support impecunious general practitioners was being hived off because there were no current applications for financial support and that ‘medical practitioners are generally well-off with few doctors and their families facing financial distress.’

Tracing its origins back to 1896, New Zealand Medical Benevolent Fund assets are being handed on to the Hauora Taiwhenua Rural Health Network on the liquidation of Fund trustee: New Zealand Medical Association Inc.

Documents filed on liquidation of the trustee indicate some $872,000 is being handed over to Hauora Taiwhenua.

High Court approval was needed for the transfer because the Medical Benevolent Fund is a charitable trust.

The legal nicety is that a charitable trust must have a continuing purpose.  It must either exhaust all its resources in furtherance of its charitable aims, or pass on its endowment to a charity having similar purposes.

Charitable Trusts Act court approval is required to ensure any transfer of funds continues to implement donors’ original purpose.

The High Court was told the Medical Benevolent Fund had become trustee of two merged medical charities: an 1896 friendly society in which general practitioners paid an annual subscription to fund temporary financial support and pensions for practitioners in need; and, an Auckland-based benevolent fund established during World War Two to similarly assist local medical practitioners needing financial assistance.

The 1896 friendly society contributed just over $430,000 to combined funds at time of the 2015 merger.

The High Court has approved transfer of Medical Benevolent trust funds across to Hauora Taiwhenua Rural health, on condition Hauora’s trust deed specify any subsequent transfer be referred back to the High Court for further Charitable Trusts Act approval.

Hauora Taiwhenua was founded by a group of Canterbury rural doctors in 1987.

Wording of its trust deed leaves open the possibility of health workers other than general practitioners receiving financial benefits.

re New Zealand Medical Association Inc – High Court (16.07.25)

25.161

Maori Land: Brown v. Brown

 

Allowing whanau to live rent free on Northland Maori land did not give rights of permanent occupation, with the Maori Land Court ordering Pompey Brown leave a Kaikohe property owned by his half-brother.

The home at Taheke Road, on outskirts of Kaikohe, is Maori freehold land.

Rights over Maori freehold land are an amalgam of customary Maori land law and English-based property law.

Those holding title to Maori freehold land have rights of individual ownership, but any offers to sell must first be made to blood relatives.

Pompey Brown came to occupy Taheke Road after his sister had lived there rent free for nearly twenty years.  Ownership lies with his younger half-brother Clarence, who was named in their father’s will as the one to inherit.

The Maori Land Court was told Clarence agreed Pompey could shift into Taheke Road to look after his sister’s possessions when she moved into residential care.  Pompey did not have to pay rent.  He did have to pay rates.

Clarence told the Land Court that Pompey was asked to leave in mid-2024.  Clarence took over payment of rates from that date.

Pompey refused to leave.  He clams ancestral rights to the land, by descent through his mother.  He aggressively resisted any suggestions he leave.

Pompey claims his ancestral rights were recognised in 1996 when the Maori Land Court refused Clarence’s application to change the status of Taheke Road from Maori freehold land to general land.  The judge refused re-registration to general land, saying this would allow Clarence to sell to any person, removing his existing obligation to offer blood relatives from his father’s first marriage a chance to purchase.

Clarence’s rights to ownership of Taheke Road come from terms of his father’s will.

This bequest of Maori freehold land to a son is recognised and protected by the Te Ture Whenua Maori Act, Judge Williams ruled.

As owner, Clarence has rights to possession.

By refusing to leave, Pompey was trespassing.

Pompey was ordered to leave within seven days, was not to cause any damage on his departure and was further ordered not to return to the property.

Brown v. Brown – Maori Land Court (16.07.25)

25.160

Estate: Dolan v. Dolan

 

In the weeks before his assisted death, Mark Dolan transferred a half-share of his family home to his spouse and all but disinherited his daughters from an earlier relationship.  His brother Matthew had the High Court halt further transactions, in advance of a challenge to widow Erin’s role on this transfer of ownership.

Mark Dolan died in August 2024.  His brother alleges long-standing arrangements allowing Mark’s daughters to inherit on his death were changed as a result of both Erin’s undue influence and Mark’s lack of capacity to make decisions in the days prior to his death.

The High Court was told of a Property (Relationships) Act agreement signed by Mark and Erin in 2017 setting out entitlements to an Auckland property then owned by Mark alone.

It was agreed that title would be changed, with each to then hold a half share as tenants in common.  Erin agreed to accept liability on an existing mortgage.

Holding title as tenants in common meant that Mark’s half share would form part of his estate on death.

The court was told that a fortnight before Mark’s death, title was changed to have the two registered as joint tenants.  This meant Erin assumed full ownership, by survivorship, on Mark’s death.  His half share no longer formed part of his estate.

Mark also re-wrote his will just prior to his death.

The law firm he regularly dealt with advised him that his daughters would likely claim against his estate if there was no provision for them in his will.

Evidence was given that Mark went to a different firm of lawyers two days later, signing a will leaving virtually all his estate to Erin, with his daughters to share a little over $20,000 held in his Kiwisaver account.

Brother Matthew is named as executor of Mark’s will.

Learning that Mark’s daughters intended to make a claim against their late father’s estate, Matthew acted quickly, lodging a caveat against title to the Auckland property.

A caveat prevents any further dealings with the title.

Widow Erin challenged registration of the caveat.

In the High Court, Associate Judge Lester ruled the caveat remain, pending a hearing into circumstances in which ownership of the Auckland property was converted from a tenancy in common to a joint tenancy.

There was medical evidence of Mark feeling weak, dizzy and generally exhausted in the days prior to his death.  There was also evidence of Erin as the one engaging with lawyers to achieve a change in ownership.

Erin claims terms of their 2017 relationship property agreement give her rights of full ownership on Mark’s death.

Dolan v. Dolan – High Court (15.07.25)

25.159

Property: Bright v. Wolfbrook Residential

 

She is holding Wolfbrook Property to account, claiming it owes $938,000 for her Upper Hutt home after a Wolfbrook-associated company pulled out of its 2021 purchase leaving her high and dry.  Pamela Bright had purchased a replacement Wellington property assuming Wolfbrook-linked Fix My Property Ltd would pay up on its unconditional contract.

With Wellington property prices in freefall, she is looking to recover from Wolfbrook the promised 2021 price for her Martin Street property.

In anticipation of Fix My Property settling its Martin Street purchase in November 2022, Ms Bright arranged $918,000 bridging finance to buy another home.

Fix My Property Ltd is now in liquidation, insolvent.  Ms Bright claims she was deceived as to who was the true purchaser.  She wants Wolfbrook property group to front up with the $938,000 purchase price.

Ms Bright claims she was led to believe during sale negotiations that substantial property group Wolfbrook was buying.  The contract she signed named Fix My Property Ltd as purchaser; a company owned by Christchurch-based Wolfbrook directors Steve Brooks and James Cooney.

She alleges this was a subterfuge.  Sales staff acting for Fix My Property deny any misleading comments were made.

In a preliminary High Court skirmish, Ms Bright had Wolfbrook Property Group Ltd added as defendant.  She claims Fix My Property was acting as agent, on behalf of Wolfbrook.

Wolfbrook Property disputed its addition to the litigation; it denies any liability.

Joining Wolfbrook Property as a defendant ensures all disputed liability can be resolved at one hearing, Associate Judge Skelton ruled.  This is preferable to having additional court proceedings filed by Ms Bright against Wolfbrook, with then two separate court hearings, potentially in conflict, running in parallel, he said.

Ms Bright is also suing Steve Brooks and James Cooney personally, alleging breach of Companies Act directors’ duties by having Fix My Property Ltd commit to a $938,000 contract without company resources on hand to honour that commitment.

Judge Skelton urged Wolfbrook to make some progress on dealing with this dispute.

The court record shows a history of prior procedural jousting by Wolfbrook as it disputed the venue for any court hearing and demanded that Ms Bright put up security for costs should she lose.

Bright v. Wolfbrook Residential Ltd – High Court (15.07.25)

25.158

FMA: Lindeman Investment v. Financial Markets Authority

 

Financial Markets Authority power to intervene in capital markets does not make it guarantor of investors’ investments ruled the High Court, striking out a Du Val investor’s claim the Authority was responsible for its Du Val investment losses because of FMA’s engagement with Du Val before the property company was pushed into statutory management in 2024.

In 2022, Lindeman Investment Ltd, controlled by Karl Lindeman, invested two million dollars in a Du Val promoted mortgage fund offering a fixed ten per cent return.

It claims FMA ‘effectively approved’ a debt/equity swap offered to mortgage fund investors in early 2024 by the then financially struggling Du Val group, leaving Lindeman Investment holding worthless Du Val shares.  

Government-appointed statutory managers seized control of all Du Val group assets and the personal assets of Du Val founders, Kenyon and Charlotte Clarke, in August 2024.

Over the previous three years, FMA had found it necessary to demand correction and amendment of publicity material directed at prospective and current investors.

FMA’s main gripe has been that Du Val group was exploiting reduced disclosure rules permitted when offering securities to ‘wholesale investors’ while actively targeting naive ‘Mum and Dad’ investors.  Wholesale investors are presumed to be able to look after themselves when appraising potential investments.  Those investing more than $750,000 in an offered security are presumed to be wholesale investors.

In 2022, the High Court upheld FMA demands that specified Du Val advertisements be reworded and that a publicity video be taken down.

Lindeman Investment’s specific complaint was that FMA failed to adequately warn current Du Val mortgage fund investors like itself about the risks of swapping their status as creditors in the Du Val mortgage fund to become shareholders in the Du Val property group: a debt/equity swap.

The High Court was told of extensive negotiations between Du Val management and FMA from late 2023, with FMA demanding a rewrite of an information memorandum sent to investors offered the debt/equity swap.

Eventually, FMA was satisfied with the content of supplementary information Du Val provided to these investors.  FMA withdrew earlier threats to go public with its current concerns.

Lindeman Investments claimed this decision to make no further public comment amounted to ‘approval’ of the debt/equity swap as promoted by Du Val.  It claims information Du Val provided was misleading. 

FMA should pay compensation, it claims.

In the High Court, Justice Blanchard ruled FMA does not owe any duty of care to specific investors like Lindeman Investments.

FMA oversight of capital markets is to protect the integrity of the capital market generally, Justice Blanchard ruled.

FMA powers are not intended to protect specific investors, each having their own legal rights and personal concerns.

Doing so would have FMA acting as backstop insurer for every investor’s idiosyncratic investment decision, Justice Blanchard ruled.  That was never intended by parliament, he said.

Lindeman Investment Ltd v. Financial Markets Authority – High Court (11.07.25)

25.157

Insolvent: Fenning v. Lexus Trustees

 

Creditors short-changed after debtor Warren Fenning set up an Insolvency Act part-payment scheme to avoid bankruptcy, then lost out again when a lawyer stole the money set aside for payment.

Back in 2019, Mr Fenning was being harried by creditors following collapse of his then print business.  Creditors were not impressed by his living the high life at a time when payments were in arrears.

He owed some $1.8 million.  Heartland Bank was his major creditor.

By now working as a real estate agent, he was concerned to avoid bankruptcy

A majority of creditors approved his Insolvency Act proposal promising each would be paid ten cents in the dollar, spread over three years, in full satisfaction of debts owed.

Funds were promised from Mr Fenning’s future real estate income, plus $50,000 coming from a family trust.

High Court approval was given, making the part-payment proposal binding on all creditors, preventing them suing for unpaid balances.

Payments to creditors were to be actioned through the trust account of Auckland lawyer Aaron Rodney Nicholls.  A total of $180,000 was paid into his trust account over a four year period.

Those setting up the part-payment scheme learnt later that Nicholls had been misappropriating client money for years.  He was struck off in 2024.

A Law Society audit found he had misappropriated at least $700,000 of trust funds, including money held for payment to Mr Fenning’s creditors.

The Law Society fidelity fund limits compensation for any one claim to $100,000.

It said no compensation would be paid Mr Fenning’s creditors until the part-payment scheme was reworked in the High Court.  It was difficult to identify exactly how much had been already paid to which of Mr Fenning’s creditors.

Mr Fenning’s creditors were asked to now agree that a pro-rata distribution of the $100,000 compensation, calculated on the original debt each had claimed, would amount to final payment.

Creditors agreed.

Justice Robinson approved the amended Insolvency Act scheme.

Fenning v. Lexus Trustees – High Court (19.11.19) & Noyce v. Lexus Trustees – High Court (10.07.25)

25.156

Estate: re Estate Mary Tahuhu Edmonds

 

Identifying with the sovereign citizen movement and expecting to be addressed as dora-elizabeth-mary:house of edmonds, Dora Edmonds demanded she was the only person competent to handle her later mother’s estate, to the exclusion of two sisters named as fellow executors, leading the High Court to remove her as executor on grounds she intended to distribute her late mother’s assets contrary to terms of her will.

Mary Edmonds died in 2022.  Three years on, probate of her will was yet to be granted.  Daughters Dora, Rachel and Veronica are named as executors.

The High Court was told Dora’s interpretation of the will is disputed.  She refused to assist her sisters’ application for probate.

In dispute is one clause in Mary’s will which states her home on Vogel Street in Palmerston North is to be sold, the proceeds used to make specified cash gifts to Mary’s two sisters and further money used for specified improvements to properties on Maori land at Whangarei in which Mary has an ancestral interest.

The legal complication is that Vogel Street was sold nearly five years prior to her death.

At law, specific legacies to be paid out of specified property adeem if prior to death the property is sold and no longer forms part of the estate.  By implication, the specific legacy is revoked.

Regardless of this rule, Dora wants to see estate money used for the proposed improvements in Whangarei.

The court was told this would see estate money used for improvements to a property Dora currently occupies.

Dora claims that as sole executrix of their late mother’s will, and with the assistance of her ‘hapu native counsel,’ she would carry out terms of the will ‘to the letter.’

Justice McHerron granted probate of Mary’s will to daughters Veronica and Rachel, excluding Dora.

Dora’s motivation in seeking sole appointment is self-interest, with an intention to use estate funds to achieve a purpose that is no longer provided for in the will, he said.      

Complaints by Dora about distribution of their mother’s personal effects were dismissed.

Veronica and Rachel had made reasonable attempts to involve Dora in gathering up and dealing with their mother’s belongings, Justice McHerron said.  These assets were of minimal value and decisions were necessary to minimise storage costs, he said.

re Estate Mary Tahuhu Edmonds – High Court (9.07.25)

25.155

Asset Seizure: Commissioner of Police v. Hansen

 

Police went too far in seeking court approval to pre-emptively seize vehicles from Auckland pensioner Brian Hansen without prior notice after Mr Hansen had previously been found not guilty of benefit fraud, the High Court ruled.

Police must first give notice of its court application, giving Mr Hansen a chance to respond, Justice Powell ruled.

Sweeping powers in Criminal Proceeds (Recovery) Act allow seizure of assets without any formal warning or prior notice where criminal activity is suspected and there is a risk that these assets might be disposed of or destroyed.

Seizure is a preliminary step; a later hearing determines whether confiscation is justified.

Such pre-emptive strikes require prior court approval.

Justice Powell was dismissive of police evidence that Mr Hansen was not to be trusted, likely to hide his Tesla, Mercedes Benz, Jaguar XJ, caravan and boat if given prior notice of plans to seize them.

The court was told Mr Hansen was found not guilty of benefit fraud in March 2025.

He is a 77 year old pensioner, living in Housing New Zealand property, where he cares for his adult intellectually disabled daughter.

The earlier unsuccessful prosecution followed allegations he fraudulently obtained benefits through a company he controlled, having this company claim payment for services caring for his daughter.  It was alleged this arrangement was a fraud, designed to circumvent a prohibition on parents claiming benefits for the cost of caring for their disabled children.

Criminal proceeds legislation allows seizure of assets obtained through criminal activity, even if no conviction follows.

Police suspect that the number of high value vehicles Mr Hansen owns must have been funded from illegal activities.

The power to pre-emptively seize assets must be carefully managed, Justice Powell ruled.  There is a risk of arbitrary and unfair action by the state.

There was no evidence of any risk that Mr Hansen would destroy or conceal the vehicles if notice of police application was served on him before a court hearing deciding whether seizure is necessary, he said.

Proceeding without prior notice in such circumstances would mean any citizen’s moveable property could be seized by the state without notice at any time, he ruled.

Commissioner of Police v. Hansen – High Court (8.07.25)

25.155