“The Claimant wishes to be represented at the hearing by its Assistant Company Secretary, Mr Ian Andrews. With only one or two exceptions, this has been the position throughout the proceedings since 2023. We would be grateful if you could let us know if there is any difficulty with that arrangement continuing.”
“(2) The court may strike out a statement of case if it appears to the court- (a) that the statement of case discloses no reasonable grounds for ... defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; (c) that there has been a failure to comply with a rule, practice direction or court order; ...”
“21. The authorities ... make clear that in the context of summary judgment the court is by no means barred from evaluating the evidence, and concluding that on the evidence there is no real (as opposed to fanciful) prospect of success. It will of course be cautious in doing so. It will bear in mind the clarity of the evidence available and the potential for other evidence to be available at trial which is likely to bear on the issues. It will avoid conducting a mini-trial. But there will be cases where the Court will be entitled to draw a line and say that - even bearing well in mind all of those points - it would be contrary to principle for a case to proceed to trial.”
“48. ... in deciding whether or not to exercise the power the court must examine the circumstances of the case scrupulously in order to ensure that to strike out the claim is a proportionate means of achieving the aim of controlling the process of the court and deciding cases justly.”
“35.8 ... based on their present understanding and the targeted document searches they have undertaken in response to the Claimant’s queries and the Court’s orders for further information and are subject to any amendment or supplementation that may come to light in particular following the solicitor-supervised document collection and review process that it is anticipated will be undertaken during the formal disclosure phrase in these proceedings.”
“35.2 [D5] subsequently made further loans to [D1] on18 November 2019 ,3 April 2020 and29 April 2020 . Although primarily a matter for [D5], [D1 and D2s’] present understanding, pending disclosure, is that the remainder of the [D6] loan was invested via loans to [D1] from Promenade (€645,000 ) and Heliopolis (€200,000 ). All the aforementioned loans have been repaid by [D1].”
“20. Mr Gilson [for D1 and D2], having taken instructions, says to me that his present position is that his side, [D1 and D2], owing to changes in ownership of [D1], simply do not know the position at all. They cannot even say that there was a loan from [D5] to [D3], let alone whether or not it was on any particular terms or whether those terms were, or were not, recorded in writing. 21. That position is, of course, a change from what is set out in the defence. However, while it seems to me that it needs to be stated clearly that that is their position, if indeed it is, that is something which can simply be done by actually making an appropriate formal statement. 22. ... Mr Gilson submits to me that ... it could be included within an amended defence .... As long as an amended defence is to be provided, it seems to me that that would be an appropriate course, since that will be a formal way in which [D1 and D2s’] case and position will be communicated both to the claimant and the court.”
“23. ... I do not regard that or other matters ... as justifying, as a matter of proportionality, the extreme sanction of striking out a defence.”
“allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.”
“dealing with as many aspects of the case as it can on the same occasion.”
“take any other step or make any other order for the purpose of managing the case and furthering the overriding objective ...”
“[C’s] filed accounts reflect its historic position as a holding company prior to the crystallisation or full recognition of assigned assets, they do not represent [C’s] current ability to meet a costs order, given the value of the substantial debt assigned to it”
“NZ’s Vivier & Company, allegedly run by a convicted British fraudster, is accused ... of failing to provide insurance and pay interest in$4m of deposits. ...”
“The convicted fraudster alleged to be Vivier’s puppet master is Ian Andrews, formerly Ian Leaf. He was convicted and jailed in 2005 for tax fraud valued at£76 million .”
“People who have worked for and with Vivier have told interest.co.nz Andrews continues to pull the strings behind Vivier. ... Interest.co.nz has seen a significant volume of email correspondence about Vivier matters provide by several sources, in which Andrews appears to be playing a role in Vivier’s day-to-day operations. Andrews doesn’t, however, use a Vivier email address. Additionally interest.co.nz has seen bank records showing payments ... from Vivier to British property development company Monument Realty Ltd, which is associated with Andrews, and Irelands Elstree Mortgages Ltd, formerly Vivier Mortgages, in July 2019.”
“The Court did not find Mr Andrews to be a reliable witness. He conceded that he had been previously known as Ian Leaf ... despite questioning from the Court, the Court remains unsatisfied as to the precise nature of his role within the plaintiff company and his connection with this litigation.”
“The judgment also says Andrews told the court he was neither a director or employee of Elstree Mortgages, but was more like a consultant working for a shareholder. Andrews indicated that his family trust owns the company, Justice Creedon said, adding no documentation was produced to underpin this evidence.”
“... the ultimate shareholder, and controller, was a wealthy businessman based in London.”
“Ian As you might assume I am rather hesitant to sign for companies I have never heard of. [name redacted] went all in for you, but I do need some documentation as to why and in whart [sic] context I am the CEO of this company.”
“... cites quotes from the liquidator [of D6] in New Zealand ... who told Interest.co.nz that the “hottest lead” in his investigation was UK-registered Monument Realty Ltd which received c. NZD 2 million (c. GBP 885,000) from Vivier group company Vivier Capital (which is also in liquidation in New Zealand).”
“Andrews was a Person with Significant Control of Monument Realty Ltd between5 June 2018 and8 July 2022 . Further Haschka has been the director of this company since17 May 2023 .”
“Haschka has held nine corporate directorships in the UK, four of which are still active. In at least two of these companies – Monument Realty Ltd and Secscan Ltd – Andrews was a Person with Significant Control ..., according to UK Companies House records.”
“5.2 Assertions about Mr Andrews’s remuneration are irrelevant: adviser fee levels do not affect the SFC test. 5.3 As regards references to assets belonging to Mr Andrews’s wife, I understand that spousal wealth cannot satisfy a costs order, especially where subject to a prenuptial agreement. ... 5.5 Assertions about properties supposedly linked to Mr Andrews are equally vague, unsupported, untrue and/or significantly out of date. 5.6 The suggestion that he secretly controls this claim is unsubstantiated by anything other than an inadmissible 2018 email, which evidences something quite different. 5.7 Allegations that Mr Andrews holds hidden assets are contradicted by a public confiscation clearance. 5.8 Attacks on Mr Nivard are misconceived: the share purchase was bona fide, his affidavit on assets uncontradicted and no contrary evidence has been produced. 5.9 The insinuation of a sham corporate structure is wholly unsupported: no nominee agreement is produced. ... 5.11 Allegations that I am dishonest about my finances are based on incredulity, not evidence. 5.12 My reduced income is explained by my stroke and confirmed by bank statements. 5.13 References to my Austrian residence and tax status are irrelevant. 5.14 Assertions about my parents’ house sale are baseless: no evidence is provided that I received the proceeds.”
“7. ... what weight (if any) this factor should have and in which direction it should weigh must depend upon matters such as whether blame for the lateness of the application is to be placed at the door of the defendant or at that of the plaintiff. It is proper to take into account the fact that costs have already been incurred by the plaintiff' without there being an order for security. Nevertheless it is appropriate for the court to have regard to what costs may yet be incurred.”
“24. ... The court should ... not take the refutation at face value. It should judge the probable availability of the funds by reference to the underlying realities of the company’s financial position; and by reference to all aspects of its relationship with its owner, including, obviously, the extent to which he is directing (and has directed) its affairs and is supporting (and has supported) it in financial terms.”
“The fact that the man has no capital of his own does not mean that he cannot raise any capital; he may have friends, he may have business associates, he may have relatives, all of whom can help him in his hour of need.”
“... the court should consider not only whether the [claimant] company can provide security out of its own resources to continue the litigation, but also whether it can raise the amount needed from its directors, shareholders or other backers or interested persons.”
“31. ... on the footing that there needs to be full, frank, clear and unequivocal evidence before I should draw any conclusion that a particular order will have the effect of stifling. The test is whether it is more likely than not.”
“The court must carry out a balancing exercise. On the one hand it must weigh the injustice to the [claimant], if prevented from pursuing a proper claim by an order for security. Against that, it must weigh the injustice to the defendant, if no security is ordered and at the trial the [claimant’s] claim fails and the defendant finds himself unable to recover from the [claimant] the costs which have been incurred by him in his defence of the claim. The court will properly be concerned not to allow the power to order security to be used as an instrument of oppression, such as by stifling a genuine claim by an indigent company against a more prosperous company, particularly when the failure to meet that claim might in itself have been a material cause of the plaintiff's impecuniosity ... But it will also be concerned not to be so reluctant to order security that it becomes a weapon whereby the impecunious company can use its inability to pay costs as a means of putting unfair pressure on the more prosperous company ...”
“The court in considering the amount of security that might be ordered will bear in mind that it can order any amount up to the full amount claimed by way of security, provided that it is more than a simply nominal amount; it is not bound to make an order of a substantial amount.”
“30. ... the court is bound to attempt to arrive at a figure which it is thought likely would be awarded by way of costs following a detailed standard assessment exercise. That, in turn, requires me to have regard to the degree to which costs are reasonable and proportionate in all the circumstances.”
“(i) ... the court will not attempt to conduct an exercise similar to a detailed assessment, but will instead approach the evidence as to the amount of costs which will be incurred on a robust basis and applying a broad brush ... (ii) In some cases, the court may apply an overall percentage discount to a schedule of costs having regard to (a) the uncertainties of litigation, including the possibility of early settlement and (b) the fact that the costs estimate prepared for the application may well include some detailed items which the claimant could later successfully challenge on a detailed assessment .... (iii) ... the court may take into account the ‘balance of prejudice’ ...: a comparison between the harm the applicant would suffer if too little security is given and the harm the claimant would suffer if the amount secured is too high. ... ... (v) ..., the court must take into account the amount that the respondent is likely to be able to raise. The court should not normally make continuation of their claim dependent upon a condition which it is impossible for them to fulfil.”