Pacific Heritage Bank v Radke [1994] CKHC 8; 168.1994 (25 November 1994)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CIVIL DIVISION)
PLAINT NO. 168/94

BETWEEN

PACIFIC HERITAGE BANK
a company duly incorporated under the laws
of the State of California, United States,
carrying on business there and elsewhere as a Bank
Plaintiff

AND

CHARLES E. RADKE
of Longbeach, California, United States
First Defendant

AND

BLANDAR LIMITED PARTNERSHIP
a limited partnership established under the laws
of the State of Nevada
Second Defendant.

AND

TRUST CORP LIMITED
an international company incorporated under the provisions
of the International Companies Act 1980-81
as trustee of the Cudue International Trust,
a trust registered pursuant to the provisions
of the International Trusts Act 1984
Third Defendant.

Counsel: Mr Arnold for the Third Defendant
Mr Manarangi for the Plaintiff

Date of Judgment: 25 November 1994

JUDGMENT OF DILLON J

On 6 October 1994 the plaintiff filed proceedings in this Court and at the same time applied ex parte for a Mareva Injunction. After hearing the submissions made by Mr Manarangi and perusing all the documents and documents and documentation filed in support of the application, an Injunction was granted on Saturday 22 October 1994 (New Zealand time) on the following terms:

"Order that a Mareva Injunction issued in terms of the Draft Order and with the additional terms that in addition to personal service on the First Defendant- substituted service is to be effected on both attorneys acting for the First Defendant, viz. (1) Brian Simon, 12001 Ocean Park Boulevard, Suite 2, Los Angeles, California 964; and (2) Jacqueline Jensen, 18006 Sky Park Circle, Suite 109, Irvine, California 92714."

The third Defendant has now made application for two orders, viz.:

1. "An application for Security for Costs pursuant to Rule 37."

2. "An application to strike out these proceedings and to set aside the Mareva Injunction."

In support of that application Mr Arnold has now exercised his rights to present final submissions by way of reply to those filed by Mr Manarangi.

Dealing with Mr Arnold's application to strike out, he relies on three grounds, viz.:

"(a) as the proceedings filed disclose no good arguable case as required on the granting of any Mareva Injunction;

(b) the prerequisite to the grant of any Order by the Court against an International Trust in terms of Section 13K(3)(b) of the International Trust Act 1984("the Act") were not satisfied; and

(c) the substantial proceedings did not disclose any reasonable cause of action."

The Registrar has faxed to me a copy of the International Trust Amendment Act 1991. That amendment adds subsections (8), (9) and (10) to Section 13B of the Principal Act; it also adds new section 3, 4, 5 and 6 to Section 13H and 13: and finally it adds 13 K. to the Principal Act.

However, Sections 13B(1) to (9) are not referred to in this Amendment. Copies of this legislation are still being airmailed to me. I propose therefore to defer my final conclusions until I receive copied of legislation. Alternative I shall give a decision when I arrive in Rarotonga in 10 days' time.

I am nevertheless prepared to consider the question of security for costs, the other Order sought. The Plaintiff is an overseas company; the Third Defendant is domiciled in the Cook Islands and is entitled to Security in those circumstances.

Security is fixed at $10,000 to be paid to the Registrar of the High Court on or before 9 December 1994. The Registrar is to lodge the Security when received in an interest bearing deposit at either the Westpac or ANZ Bank in Rarotonga.

DILLON J