IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CIV-2021-485-118
[2023] NZHC 2277	

BETWEEN	MARIA BERNADETTE JOHNSON
Applicant in substantive proceeding; Respondent to order for examination	
AND	CRAIG BRYAN JOHNSON
Respondent in substantive proceeding; Applicant for order for examination	

Hearing:	27 June 2023	
Counsel:	C M Stevens, T Mijatov and C M McCracken for Craig Johnson P F Dalkie for Maria Johnson	
Judgment:	22 August 2023	

JUDGMENT OF GWYN J

Introduction

[1]	Maria Johnson, the respondent to the order for examination, owes a judgment debt to Craig Johnson, the applicant, of $1,133,651.38.1 Ms Johnson owes a further judgment debt to Mr Johnson and others, of $61,622.2

[2]	Ms Johnson has failed to pay the debts referred to in [1].

[3]	On 28 April 2023 Mr Johnson filed a without notice application for order of examination of Ms Johnson, pursuant to r 17.12 of the High Court Rules 2016 (Rules).

1	Pursuant to judgment in a Property (Relationships) Act 1976 proceeding between the parties (the PRA proceeding).
2	A 2022 costs judgment.

JOHNSON v JOHNSON [2023] NZHC 2277 [22 August 2023]

[4]	On 11 May 2023 Associate Judge Skelton made an order for Ms Johnson’s examination, requiring her to attend at the High Court at 10 am on 27 June 2023.

Examination hearing

[5]	Ms Johnson, represented by counsel Mr Dalkie, appeared at the examination hearing on 27 June 2023. Mr Johnson was represented  by  counsel,  Mr  Stevens,  Mr Mijatov and Mr McCracken and Mr Johnson also appeared in person.

[6]	The Registrar, Anne Murdoch Moar, has provided a report of the examination dated 29 June 2023.

[7]	During the course of the hearing various categories of relevant information were identified as not having been provided by Ms Johnson. Mr Johnson has prepared a schedule of further information that he says ought to have been provided but was not. Some items on that schedule are disputed by Ms Johnson. They are considered in relation to the second question for ruling, discussed below.

Questions requiring ruling from a Judge

[8]	During questioning at the examination hearing two matters arose on which the Registrar gave an opinion, but which now require a Judge’s ruling. The Registrar directed submissions to be filed addressing those two matters, together with orders to be made under rr 17.17 and 17.18.

Ruling one — time period

[9]	The order included the “standard issues” set out in r 17.12(3), including the specification “the [preceding 52 weeks”.

[10]	The order in relevant part said:

1…the Court orders that you attend at the High Court at Wellington, at the date and time specified below, to be examined as to your receipts and payments for the preceding 52 weeks, income, expenditure, assets, liabilities, and means of satisfying the judgment debts totalling $1,133,651.38, which is comprised of ….

2 You are also ordered to produce all evidence of your receipts and payments for the preceding 52 weeks, income, expenditure, assets, liabilities, and means of satisfying the judgment debt.

[11]	At the foot of the order it said:

You are required to attend for examination at the High Court at Wellington on 27 June 2023 at 10 am.

[12]	The question for ruling is what is meant by the phrase “preceding 52 weeks”
— does it relate to the date the order was sealed (11 May 2023) or the date of the examination (27 June 2023)?

Submissions for Mr Johnson

[13]	Counsel for Mr Johnson says the word “preceding” most naturally refers to the “date and time specified below”, which is required to be (and was) specified in the order itself. That date is 27 June 2023, at 10.00 am, being the date and time on which Ms Johnson was required to attend to be examined. It is that date to which the “preceding 52 week” period relates.

[14]	Rule 17.12 provides for an order for examination, which may be made whether or  not  a  notice  has  been  served  seeking  financial  information.3  Counsel  for   Mr Johnson says that is significant because it means the fact that an earlier notice may have been sent does not limit the date range to which the 52 weeks relates, in the event that an order is subsequently obtained.

[15]	Attending Court and being orally examined on oath, as required by the order for examination, can only take place on the hearing date and time set out in the order. The clear and necessary implication in r 17.12 is that the “preceding 52 weeks” is measured from the date of the hearing.

[16]	Counsel for Mr Johnson says this interpretation is consistent with the purpose of examination orders, which provide for a hearing so that the examining party can

3	High Court Rules 2016 [Rules], r 17.12(1).

obtain financial information on oath for enforcement purposes. If that information is to be relevant and useful for enforcement, it must be as current as practicable.

Submissions for Ms Johnson

[17]	Mr Dalkie, for Ms Johnson, says the order for examination was made on 11 May 2023. When the Associate Judge made the order, he did not know what the examination date would be. As a matter of logic, the preceding 52 weeks could only be the 52 weeks preceding 11 May 2023.

[18]	Counsel says that interpretation is supported by the words of the order. Their plain meaning is that the 52-week period runs from the date of the order. That is, the 52-week period runs backwards from 11 May 2023.

[19]	The date at the bottom of the order is merely the date on which the examinee must attend and be examined. It is not referable to the “preceding 52 weeks”. If it was intended that it be the 52 weeks preceding the date of the examination, the order would need to specify that. It does not, r 17.12(2) and (3) link the time to run from the date on which the order is made.

[20]	Counsel for Ms Johnson also notes that, although r 17.12(4) refers to production of documents, the order itself requires the recipient of the order to “produce all evidence”. Counsel relies on the words “produce all evidence”, rather than to produce documents. Counsel suggests that a recipient may need to have some legal knowledge to know what “evidence” might be or include.

Discussion

[21]	I do not think it is relevant or useful to focus on what the Associate Judge knew or did not know about a hearing date at the time he made the order. What is important is what Ms Johnson received. The order received by her noted the hearing date and time (27 June 2023 at 10 am).

[22]	While the actual date and time is at the foot of the order, there is no doubt that “specified below” refers to that date, not the date on which the order was issued, so it

was plain when Ms Johnson was required to appear for examination. The words “the date and time specified below” and the words “for the preceding 52 weeks” appear in the same sentence and are linked.

[23]	The text of the order supports the interpretation that “preceding 52 weeks” is referable to the date of the examination, not the date of the order.

[24]	A purposive approach also supports that interpretation. Part 17 of the Rules is concerned with enforcement of a judgment or order. Rule 17.10 and the examination process under rr 17.12–17.18 is for the purpose of enabling the entitled party to obtain information from a liable party, to assist in deciding which enforcement process(es) will be most appropriate. As counsel for Mr Johnson submits, in order for that information to be useful for its stated purpose, it must be current information. That purpose is promoted by the 52-week period being referable to the date of examination, rather than the date of the order, given, for example, the possibility of a lengthy delay between the date of the order and the date of the examination hearing.

[25]	Where a provision is susceptible of several meanings, the Court will seek the interpretation that leads to the most practical and sensible result. So, for example, in Holmes v Bradfield Rural District Council,4 Finnemore J said:
… [I]f there are two different interpretations of the words in an Act, the court will adopt that which is just, reasonable and sensible rather than that which is none of those things.

[26]	And, in Ports of Auckland Ltd v Southpac Trucks Ltd,5 Baragwanath J noted, “the construction that accords with common sense” should be preferred.

[27]	In my view, the interpretation that better accords with common sense is that “preceding 52 weeks” refers to the date on which the examination hearing occurs.

[28]	In relation to Ms Johnson’s last submission, so far as I can discern, the difference in wording between r 17.12(4) and the order itself — “production of

4	Holmes v Bradfield Rural District Council [1949] 2 KB 1 at 7.
5	Ports of Auckland Ltd v Southpac Trucks Ltd [2008] NZCA 573, [2009] 2 NZLR 79 at [75] per Baragwanath J.

documents” compared to “produce all evidence” — has no significance in relation to when the “preceding 52 weeks” runs.

[29]	I conclude that “preceding 52 weeks” is to be calculated by reference to the date of the examination hearing, not the date of the order to attend at the hearing.

Ruling two — relevance of the companies’ financial information

[30]	In questioning during the examination, counsel for Mr Johnson sought financial information about companies which are 100 per cent owned and directed by Ms Johnson. Ms Johnson’s counsel objected on the basis that company information is not relevant to Ms Johnson’s personal net assets / debt position.

[31]	The Registrar gave an opinion that only information relating to Ms Johnson’s personal position was relevant and that care was needed not to stray into the company’s affairs, but referred the question for a Judge’s ruling.

[32]	The question is whether the order for examination requires the examinee to produce financial information about companies which are 100 per cent owned by the examinee. In this particular case, is Ms Johnson required to produce documents relating to the companies called Little School Limited (LSL), Little School (St Heliers) Limited (LSSH) and Life Learning Aotearoa Limited (LLAL)?

[33]	Ms Johnson agrees to produce certain documents, being 2, 3, 7, 8 and 9 of Schedule 1. In addition, Mr Johnson seeks production of the following documents, in respect of each of LSL, LSSHL and LLAL:

(a)	Month-on-month accounts for the last 12 months; and

(b)	Draft financial statements.

Submissions for Mr Johnson

[34]	The submission for Mr Johnson is that Ms Johnson is the 100 per cent shareholder of each of the three companies. The shares in the three companies are her

personal property.6 The value of those shares is ascertained by objectively verifiable financial and accounting evidence.

[35]	LSL is Ms Johnson’s most substantial asset. Of an asserted net asset position of $4,139,236, it is ascribed a value by Ms Johnson’s accountant of $3,116,000, which is the value ascribed in December 2021.

[36]	Counsel for Mr Johnson says the financial information sought is relevant to determining Ms Johnson’s financial means because it will assist in determining the value of her shareholding in LSL:

(a)	Ms Johnson confirmed during the course of the examination that there are month-to-month accounts in existence for LSL, a draft/unsigned end of year set of accounts and information in the Xero accounting software used by LSL.

(b)	Ms Johnson has conflated LSL assets with her personal assets, having confirmed during examination that proceeds of sale of LSL properties at Churton Park were used to pay down her personal debt to the Takeovers Panel.

(c)	The value of Ms Johnson’s shares is a live issue and should be determined as accurately as practicable. Ms Johnson produced a single- page summary, prepared by her accountant, ascribing to LSL a dollar value identical to its value in a December 2021 valuation.

(d)	There is reason to doubt the reliability of that evidence of value. The statement prepared by Ms Johnson’s accountant contains errors and omissions including that it fails to mention any listed shares owned by Ms Johnson (in Mercury Energy), it lists shares as liabilities not assets, it fails to ascribe a value to the debt Ms Johnson owes to her former lawyers (describing it only as “disputed”) and omits to refer to a general

6	Companies Act 1993, s 35.

security agreement (GSA) held by Andrew Hollis (Ms Johnson’s partner) over all of Ms Johnson’s personal property.

(e)	Ms Johnson relied on a valuation from well outside the 52-week period under examination which is dubious evidence as to the value of the shares in LSL today. In addition, the valuation proceeded on the basis of LSL owning all the preschools, but following the consent orders made by the parties in December 2021, Mr Johnson operates preschools from two of the locations formerly operated by LSL.

(f)	The best evidence of the value of the shares in LSL is the value of the company itself; that is best ascertained by interrogating the financial accounts of the company which provide an objectively verifiable measure for the value of the shares.

[37]	On that basis, Mr Johnson seeks a ruling that the companies’ financial information (as set out at [33] above) must be produced by Ms Johnson.

Submissions for Ms Johnson

[38]	Ms Johnson asserts that LSL’s value has been maintained and the December 2021 valuation remains current.

[39]	Counsel for Ms Johnson says there is no power under r 17.12 to order production of documents of the companies.

[40]	As the order recites, the two judgments in question are against the named respondent, Ms Johnson. She is the judgment debtor, defined in r 17.1:

judgment debtor means the party liable under a judgment to return or pay a sum of money or the party whose estate, right, title, or interest in property is liable to be charged under a charging order.

[41]	The power under the examination rules gives the right to the holder of a judgment to certain methods of enforcement against the judgment debtor.

entitled party means—

(a)	a judgment creditor; or

(b)	a party other than a judgment creditor entitled to relief against another party under a judgment; or

(c)	a party entitled to issue a charging order because the party may obtain judgment for—

(i)	the payment of the sum of money; or

(ii)	the return of the property the party seeks to charge

judgment creditor means the party entitled to enforce a judgment for the recovery or payment of a sum of money.

[42]	The power under r 17.12 to make an order for oral examination is accordingly confined to the judgment debtor, unlike the powers under ss 165 and 173 of the Insolvency Act 2006, where a notice under those provisions extends to summons not just the bankrupt but other people as well.

[43]	Mr Dalkie relies on the principle that a company is a separate legal personality from its shareholders, enshrined in s 15 of the Companies Act 1993.

[44]	Although Ms Johnson is a director and shareholder of the companies listed by the applicant, that does not mean she can be ordered to provide documents of these companies. Accordingly, there is no power under r 17 to order production of the documents from these companies.

[45]	The second ground on which Ms Johnson resists production is that the company documents are sought by Mr Johnson for an ulterior or improper purpose.

[46]	Counsel notes that the consent orders made between the parties on 8 December 2021 resulted in Ms  Johnson  receiving  LSL  as  her  principal  asset.  However,  Ms Johnson got only five of the schools operated by LSL and Mr Johnson got two. That means the parties are now in direct competition. The bulk of the documents now sought by Mr Johnson concern the financial information of not only LSL, but also other companies. Ms Johnson has already provided the current value of the shares she holds.

Discussion

 Is the financial information of the companies relevant to Ms Johnson’s assets?

[47]	Two basic tenets are relevant:

(a)	A share in a company is personal property.7

(b)	A company’s assets are owned by the company itself and not by the company’s shareholders. A shareholder has no proprietary or beneficial ownership in any individual asset of the company.

[48]	The submission for Ms Johnson conflates these two principles and appears to assume that Mr Johnson is seeking an order for production against the companies themselves. That would be outside the ambit of r 17.12. However, that is not what is sought.

[49]	It is not disputed that Ms Johnson is a 100 per cent shareholder of each of LSL, LSSH and LLAL. The shares she holds in those companies are personal property and therefore included amongst her assets. What Mr Johnson seeks is an order requiring Ms Johnson, as the judgment debtor, to provide relevant financial information about the companies, from which Mr Johnson can be satisfied as to her “assets and liabilities”.

[50]	Mr Dalkie also relies on authorities where the Court held that production of certain financial information could not be ordered. In Waimauri Ltd v Mahon,8 Associate Judge Sussock observed that financial information sought by a debtor in bankruptcy proceedings was not information that the debtor would have to provide under pt 17 of the Rules. The Associate Judge said:9
But  this  is not correct.10	Information was sought in respect of not just  Mr Mahon but all of his associated entities.

7	Companies Act, s 35.
8	Waimauri Ltd v Mahon [2021] NZHC 1538.
9	At [70] (footnote amended for clarity).
10	Rules, r 17.12(3); Hunt v Muollo [2003] 2 NZLR 322 (CA) at 325; and McCormack v National Australia Bank Ltd (1992) 106 ALR 647 (FCA) at 649–650.

[51]	A closer examination of Waimauri suggests that it is not analogous to this case. There, the information sought by the debtor included “financial statements for all of Mr Mahon’s entities together with supporting bank statements”,11 however the judgment does not detail what those entities were, or the nature of Mr Mahon’s interest in them.

[52]	Hunt v Muollo, one of the cases relied on by Associate Judge Sussock, concerned an order for examination under r 621 of the High Court Rules (the predecessor to r 17.12). There, Master Gendall had made an order requiring Mr Hunt to produce information which included documents evidencing the financial details of a number of trusts and  companies with which Mr Hunt “had an association”.12         Mr Hunt said that he was at most a discretionary beneficiary of some of the trusts and that the trusts owned all the shares in all the relevant companies, save for one in which Mr Hunt owned shares personally.

[53]	The Court of Appeal said:13

The issue of principle is whether the interest of a purely discretionary beneficiary in a trust is a species of property capable of coming within the concepts of “assets” or “means” for the purposes of R 621(2).

[54]	The Court concluded:14

…if such interest as Mr Hunt has in any of the trusts, and via them the companies, is no more than that of a wholly discretionary beneficiary, there is no basis under R 621(3) for an order that he produce any of the trust or company documents. They would not be relevant to his assets or other means, and it would equally be irrelevant whether they were within his possession or power.

[55]	In relation to the company in which he owned shares personally Mr Hunt acknowledged that was in a different category in light of his personal shareholding and the Court said for that reason that category could be put to one side.15 The

11	Waimauri Ltd v Mahon, above n 8, at [56].
12	Hunt v Muollo, above n 10, at [1].
13	At [9].
14	At [14].
15	At [9].

judgment supports the proposition that information relating to the debtor’s personal shareholding will be relevant.

[56]	The other case cited by Associate Judge Sussock and relied on by Ms Johnson is McCormack v National Australia Bank Ltd. There, a full court of the Federal Court of Australia noted, in relation to an application for an order under a rule in similar terms to r 17.12:16
Order 43, r 31 does not, as does s 81 of the Bankruptcy Act 1966 (Cth), allow for a general, wide ranging inquiry into the financial transactions of the debtor. The purpose of the examination is to ascertain from what sources the debtor may satisfy the judgment debt. The term “means” does not denote other possible methods by which the judgment creditor may obtain satisfaction of the debt. It is the means of the debtor which are the subject of the examination.

[57]	The general proposition set out there is not in dispute in this case. What      Mr Johnson seeks is information about Ms Johnson’s means and assets —namely, the shares.

[58]	Mr Dalkie also relies on AMP Finance Ltd v Linecorp Investment Ltd.17 In that case the application sought orders that the third defendants (who were parties in their capacity as executors of the estate) give particulars of the assets and liabilities of the estate.

[59]	The application was opposed. Justice Barker rejected a submission that there was no jurisdiction under r 621 (now r 17.12) to require a trustee or executor who was a party to submit to an order for examination.18 However the Judge said “I hasten to add that any order could only apply to disclosure of estate assets and not to a trustee’s personal assets”.

[60]	The balance of the judgment turned on the Judge’s conclusion that no sufficient basis had been made out for him to exercise his discretion to issue a charging order before judgment had been obtained. He said:19

16	McCormack v National Australia Bank Ltd, above n 10, at 649.
17	AMP Finance Ltd v Linecorp Investments Ltd HC Auckland CP351/90, 14 June 1991.
18	At 6.
19	At 6–7.

I do not think that the Court should countenance any attempt to obtain an order for examination of a defendant pre-judgment in the hope of obtaining a charging order unless there is some evidence that a charging order is likely would be [sic] granted. The fact that a plaintiff would like to know whether a defendant is worth suing, is not in my view sufficient justification for requiring a defendant to undergo the potentially oppressive processes of this Rule.

The position is of course different once judgment has been entered. The plaintiff then has a cast-iron justification for wanting to know the defendant’s assets; until the plaintiff is in that position then the application must be refused.

[61]	Again, that case is not analogous to this one. Here a judgment has been given. That fact was relevant to Associate Judge Skelton’s decision to grant the r 17.12 order. Also, in AMP Finance, the Court made the distinction between the assets of the trust and the trustees’ personal assets. Disclosure of the former could be ordered (where the trustees were joined in their capacity as trustees), but not the latter. That is different from this situation when Ms Johnson owns shares in the companies, thus making them her personal assets, and the applicant says it is necessary to have the financial information sought about the companies in order to ascertain the value of those shares.

[62]	I conclude that the financial information of the companies is relevant to ascertaining the value of Ms Johnson’s shares in the companies, which are assets for the purposes of the examination. Ms Johnson failed to provide up-to-date information about the share value of the companies at the examination hearing.  On that basis,  Mr Johnson is entitled to again require production of the relevant information.

 Collateral purpose

[63]	In support of the submission that the companies’ financial information is sought for an ulterior or collateral purpose, counsel for Ms Johnson relies on ANZ National Bank Ltd v Sheahan,20 where the Court refused to allow an examination as an abuse. That case concerned an order that a qualifying person attend before the Court to be examined and to produce documents, pursuant to s 266 of the Companies Act.21

20	ANZ National Bank Ltd v Sheahan [2012] NZHC 3037, [2013] 1 NZLR 674.
21	At [35].

The context and power at issue in the Sheahan case was plainly different. It involved an application by the liquidators of Cedenco to compel ANZ National Bank Ltd (ANZ NZ) and Ms Dekker, a bank officer employed by ANZ NZ, to provide specified documents and attend at an examination, pursuant to ss 261 and 266 of the Companies Act.

[64]	The allegations by the parties resisting the applications were that the orders were sought as part of an “extensive fishing expedition”, for the benefit of Cedenco Australia and for purposes collateral to the New Zealand liquidation.22 Counsel for the liquidators acknowledged,23 that the liquidators were investigating whether claims might exist against parties.

[65]	Justice Heath held that while there was jurisdiction to make an order for examination under s 266(2), one of the factors weighing against examination was that it would be oppressive to Ms Dekker to require her to attend an examination, when no benefit could flow to the creditors of Cedenco NZ.24 “The New Zealand liquidators’ attempt to examine Ms Dekker can, in my view, fairly be characterised as being for an ulterior purpose.”25

[66]	In that case Health J set out a summary of principles applicable when determining whether a proposed examination (there, under ss 261 and 266 of the Companies Act) is or is not an abuse of process.26 The Judge referred to the judgment of the full court of the Federal Court of Australia in Re Excel Finance Corp Ltd (Receiver and Manager Appointed); Worthley v England:27

(a)	Whether there is an abuse of process will depend on the purpose of the application and the circumstances of the case. Generally, for an abuse of process to be found, it is necessary that the offensive purpose be, at least, the predominant purpose.

22	At [28].
23	At [30].
24	At [67].
25	At [67(b)].
26	At [61].
27	Re Excel Finance Corp (Receiver and Manager Appointed); Worthley v England (1994) 52 FCR 69 (FCA) (Gummow, Hill and Cooper JJ).

(b)	If an application for an examination order has the purpose of obtaining a forensic advantage not otherwise available, his or her conduct is likely to amount to an abuse of process.

[67]	Justice Heath went on, by way of illustration:28

… the use of the power to obtain an examination summons for the principal purpose of furthering the cause of a liquidator’s appointors in litigation against third parties, for a purpose foreign to that for which it was granted, will amount to an abuse of process. That is because it is not being exercised for the benefit of the corporation, its contributories or creditors.

[68]	Applying those principles to this case, I am not satisfied that the alleged ulterior purpose can be fairly characterised as Mr Johnson’s predominant purpose in seeking the financial information about the companies.

[69]	As I have already found, the financial information of the companies is relevant to ascertaining the value of Ms Johnson’s shares in the companies, which are assets for the purposes of the examination.

[70]	However, I do accept that, in practice, provision of the information sought might be said to give Mr Johnson a competitive advantage, in relation to the early childhood business sector in which both he and Ms Johnson are now operating.

Those concerns can be met by ordering production of the financial information on conditions, which I set out below. Other matters

[71]	Mr Dalkie’s submissions also address what he terms “Maria bashing”, characterised as “the continual personal attack on Maria Johnson”.

[72]	I do not propose to respond to those submissions. In my view they are not relevant to the issues for determination before me.

[73]	Ms Johnson noted at the examination hearing that she has filed an appeal from the PRA decision.29 However, as Ms Johnson also confirmed, no stay of the High

28	ANZ National Bank Ltd v Sheahan, above n 20, at [62] (footnotes omitted).
29	The PRA proceeding, above n 1.

Court judgment has been sought. Accordingly, the status of the appeal is not relevant to the determination of the questions before me.

[74]	Nor am I required to address the submission for Ms Johnson about the Fiji property, previously owned jointly by the parties, which, under the consent orders of 8 December 2021, was to be transferred to Ms Johnson by Mr Johnson.

[75]	I conclude that Ms Johnson must provide the financial information about the companies sought by Mr Johnson, on the terms set out at [83(b)] below.

Orders under rr 17.17 and 17.18

[76]	Counsel for Mr Johnson acknowledges that further enforcement orders cannot be advanced until Ms Johnson has provided the further documents sought. He therefore reserves his position in respect of seeking orders under r 17.17.

[77]	Mr Johnson does however seek an order for arrest pursuant to r 17.18.

[78]	Rule 17.18 provides:

17.18 Failure to comply with order for examination
(1)	A Judge may make an arrest order against an examinee who—
(a)	fails to attend the examination; or
(b)	refuses at the examination to take the oath or to answer any question; or
(c)	fails to comply with the order for examination in any other way.
(2)	Subclause (1) is subject to subclauses (3) and (4).
(3)	An arrest order for failing to attend the examination must not be made unless the examining party has filed the affidavit required by rule 17.14.
(4)	If an arrest order is made, the Judge must direct that—
(a)	the order is suspended provided the examinee—
(i)	attends the court or any person whom the court has appointed for examination at a time and place specified in the order; and
(ii)	complies with all the terms of the arrest order and the order for examination; and
(b)	if the examinee fails to comply with any term on which the arrest order is suspended, the examinee may be brought

before a Judge so that the Judge may consider whether to impose a sanction under subpart 4 of Part 2 of the Contempt of Court Act 2019, which may result in the Judge imposing a fine, a term of imprisonment, or a period of community work on the examinee.

[79]	The submission for Mr Johnson is that Ms Johnson has failed to comply with the order for examination “in any other way” by failing to provide all documents relevant to her financial means. That was accepted by Ms Johnson in questioning at the examination hearing.

[80]	Mr Johnson seeks an  arrest  order  to  be  suspended  on  terms  requiring  Ms Johnson’s production of documents under r 17.18(1)(c) having regard to:

(a)	Ms Johnson’s non-compliance with the order, attending the examination hearing without all of the required documents.

(b)	Ms Johnson’s failure to voluntarily provide the information when requested on 24 March 2023 by Mr Johnson’s solicitors through her solicitor and counsel to complete the standard form, or any time prior to the examination hearing, despite correspondence requiring the documents to be provided.

(c)	There is no unfair prejudice to Ms Johnson if the arrest order is made as  the  rules  require  the  order  to  be  immediately  suspended.  If Ms Johnson complies in full with the order, the serious consequences of the arrest order will not be realised.

[81]	I accept that Ms Johnson has failed to comply with the order of 11 May 2023. However, in light of the further orders I make below, I do not propose to make an arrest order at this point. I indicate that if Ms Johnson fails to produce the documents referred to at [85(a)] within the specified time, the Court will make an arrest order pursuant to r 17.83(2).

Orders

[82]	The submissions filed for Ms Johnson indicated that she would produce the documents sought (other than those in relation to the companies) by 14 July 2023. I do not know if that has occurred.

[83]	I make the following orders:

(a)	To the extent she has not already done so, Ms Johnson is to produce all of the documents referred to in sch 1 to the applicant’s submissions by
5.00 pm Tuesday 5 September 2023.

(b)	The documents relating to  the  companies  are  to  be  provided  to  Mr Johnson’s counsel, who may in turn disclose them to an accountant for analysis on behalf of Mr Johnson. Those documents are not to be disclosed to Mr Johnson himself.

Gwyn J

Solicitors:
McDonald Law Limited, Auckland DLA Piper, Wellington