Fran O'Sullivan: Long, sorry saga of justice delayed

Huka Lodge was once businessman Alex van Heeren's playground. Photo / File

COMMENT:

The wheels of justice can turn very slowly. Very slowly indeed, it appears, when it comes to the lengthy dispute between Huka Lodge owner Alex van Heeren, one of the most powerful businessmen in New Zealand in the late 1980s and 1990s, and Michael Kidd, his former South African business partner.

Kidd is still waiting on the interim payment of US$25 million which High Court Justice John Fogarty ordered to be paid within a month by van Heeren on April 15, 2015, along with providing an accounting of their assets as a result of litigation between them stretching back to 1996.

This week the Court of Appeal took yet another step in the lengthy dispute between the pair which has involved multiple court cases in different jurisdictions, private eyes for both camps and claims and counter-claims resulting from their business dealings in South Africa which ended in 1991.

A judgment was issued at 10am on August 1 with full publication of the details allowed from yesterday. But yesterday, the Weekend Herald was told van Heeren is considering an appeal to the Supreme Court. We now cannot publish any detail from the Court of Appeal's judgment after the Supreme Court granted an application to extend a non-publication order as part of that further appeal process.

At this point, I am precluded from telling readers what is in the judgment.

But what I can say is that in my opinion this lengthy affair — stretching back more than two decades since Kidd first launched litigation against van Heeren in 1996 — is becoming a disgrace to our legal system and is making a mockery of open justice.

Those of us who have tangled with well-heeled players in New Zealand's judicial system over commercial matters know full well the wars of legal attrition that get waged on costs.

Multiple court wrangles over obscure elements that delay even getting to a hearing, let alone delivering the results of a judgment; endless spurious interrogatories issued on the eve of public holidays — so the game goes on to the point where litigants get buried under a welter of costs or walk away to preserve their mental and financial wellbeing.

Serial litigants who tie up our courts — I am thinking here of former Conservative leader Colin Craig — are at times treated with a degree of civility and patience which I believe they do not deserve on balance, and which can victimise their opponents.

Kidd is not one of those people. If the saying "justice is for those who can afford it" holds true, he has bankrolled both his own litigation and the counter-claims over many years now. And short of a negotiated settlement — which neither side has shown any sign of wanting — this looks likely to go on.

Consider this. In late 2015, van Heeren applied to the Court of Appeal to stay Fogarty's order until his own appeal from the broad decision was heard. Justices Rhys Harrison, Lynton Stevens and John Wild dismissed van Heeren's application. They agreed that van Heeren would be affected by complying with the order if his appeal was ultimately successful.

Alex van Heeren. Photo / File

"But in our judgment the dominant contrary factor is that Mr Kidd, at the age of 74 years, is entitled to the fruits of his judgment by taking the next steps along what on Mr van Heeren's evidence promises to be a long and expensive road in quantifying and enforcing Justice Fogarty's orders.

"He is entitled to that benefit now, not having to await indefinitely on the result of further appeals to this court and possibly further as if the High Court judgment does not exist."
That was in late 2015.

The case trotted off to the Supreme Court, which in late 2016 upheld the Court of Appeal.

Kidd has long claimed that particular assets including Huka Lodge were part of a 50-50 world-wide partnership between the pair dating back to their steel trading business in South Africa between 1975-1991 in which he received just US$3m as his share of the assets when the partnership ended.

Those assets include: Huka Lodge, which Kidd has put a caveat on to prevent its sale; an island in Fiji; shares in New Zealand and South African companies; the sale of company assets worth between US$16.8m and US$20.7m; offshore bank accounts, and gold bars and bearer certificates.

But van Heeren countered that a 1991 indemnity provided for a full and final settlement of all matters between the parties.

That claim was blown wide open in the High Court in South Africa where a judge found van Heeren had taken advantage of Kidd's trust and had misrepresented what was covered by the indemnity.

There were rumours a year of so back that the glamorous $1600-a-night Huka Lodge was up for sale. It is one of the businessman and Honorary Dutch consul's calling cards. It is there on the banks of the Waikato River that he personally hosted minor royalty, international businesspeople and others who came under his magnetic influence after he left South Africa due to political uncertainty and came to New Zealand in the early 1980s.

It has at times been a dirty affair.

When private investigators working for Kidd arrived in Auckland in 1994, they were detained in the office of a prominent law firm by former detective inspector John Hughes.

Hughes (now deceased) was working as a private investigator for van Heeren. He was later accused of impersonating a police officer and illegally detaining a person. But no charges were laid. They were against Kidd's investigator.

Kidd is now 76, verging on 77 and van Heeren is 72.

There's an old saying that "justice delayed is justice denied" which Kidd must be pondering right now.