Appeal's implications relevant for trustees

Hilary Calvert.
Hilary Calvert.
Dunedin city councillor Hilary Calvert is planning to appeal a High Court of New Zealand decision which awards costs against her and HGW Trustees following the latest twist in a complicated court case.

HGW is the trustee company for Dunedin accountancy firm Harvie Green Wyatt.

Ms Calvert's husband and spokesman Alistair Broad said in an interview yesterday it was important Ms Calvert appealed the costs decision because it had wide-ranging implications for thousands of trustees throughout New Zealand.

''When she sat down and signed off a set of accounts prepared by a respected accountant she presumed they had not been altered,'' Mr Broad said.

The appeal would centre on the activities of other people in preparing and signing off a set of accounts, he said.

For that reason, the decision by Judge Rachel Dunningham had to be appealed, he said.

The case had been brought to the attention of the New Zealand Trustees Association. The wrongdoing was pushed off to a trustee who knew nothing about it, Mr Broad said.

''This is an unfortunate situation because any trustee could find themselves in the same situation,'' he said.

''How can a lay person have any idea of what is happening behind the scenes when accounts are being prepared?''

The decision relates to an earlier finding from Judge Dunningham, updated on March 17, in which the judge said Otago businessman and property developer Chris James' family trust ''fraudulently'' tried to conceal $740,000 from his failed company's creditor.

''It was a deliberate, if unsophisticated, device to remove the $740,000 from failed James Development Ltd's (JDL) balance sheet to avoid relinquishing it to the main creditor upon liquidation.''

In October 2006, funds which included a sum of $740,000, were advanced by JDL.

During 2009 to 2012, a substantial home was built on the Jacks Point property now occupied by Mr James and his family.

On April 8, 2009, a summary judgement was entered against JDL for non-performance of an agreement to purchase property from Mana Property Trustee.

As a consequence, JDL owed Mana about $4 million or more.

JDL appealed the judgement and a stay was granted pending appeal, subject to certain payments being made.

Faced with paying the judgement debt, and with no certainty the appeal would be successful, Mr James and his advisers met on July 1, 2009, to discuss JDL entering into liquidation, court documents show.

The meeting was attended by Mr James, his accountant Todd Miller, from Harvie Green Wyatt, Michael van Aart, from law firm van Aart Sycamore, and Colin Withnall QC, the documents show.

Before the meeting, Mr Miller and Doug Harvie, also of HGW, discussed the fact that: ''If the company were to be liquidated, it would have issues with the asset advance to [the trust] and the liabilities that existed to Chris James and Heriot Holdings Ltd''.

Mr Miller accepted a key purpose of the meeting was to deal with the asset on the books of JDL which if the company went into liquidation would be recovered by the liquidator. The resolution was signed by Mr James as a consequence of that meeting, the documents show.

Mr Withnall later said he had no recollection of the meeting, nor of giving advice to Mr James or JDL as to accounting entries in the accounts for JDL.

Mr Withnall said it would be most unusual for his advice to be sought as to accounting entries as his brief was solely with the conduct of the litigation with Mana.

Similarly, Mr van Aart denied giving advice as to the treatment of the $740,000 advance shown on the accounts of JDL.

Judge Dunningham accepted they had no knowledge of the situation.

In the end, it was acknowledged by Mr Miller the decision to draft and pass a resolution to ''reclassify'' the $740,000 loan was an option he proposed, albeit with express reservations, the documents show.

The judge said she was satisfied that when Mr Miller drafted the resolution, he knew there had not been advances from Mr James of $500,000, or Heriot Holdings Ltd of $240,000 to JDL, which was being repaid.

When contacted yesterday, Mr Harvie said it was not appropriate for him or Mr Miller to comment.

On July 6, 2009, JDL was placed voluntarily into liquidation.

In mid-November the same year, Ms Calvert was appointed a trustee, replacing the Brocal Trustees, with HGW Trustees remaining as the other trustee.

The appointment of JDL meant its primary focus was pursuing the litigation with Mana.

On October 19, 2009, the Court of Appeal delivered a judgement, but the Supreme Court reversed the Court of Appeal's decision.

The Dunedin liquidators then resigned and were replaced by Auckland liquidator Grant Reynolds, who started an investigation of JDL's financial position.

''The liquidator then began a drawn out process of requesting from JDL's director Mr James, and his advisers for the purpose of, in particular, verifying the resolution amending the status of the $740,000.

''In response to this line of questions, I am satisfied there was a deliberate stance adopted to delay providing answers and then to provide the minimum material possible in response to the liquidator's requests,'' Judge Dunningham said.

Although costs have been awarded against Ms Calvert and HGW, no costs were awarded against Mr James.

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