A High Court judge has refused Christchurch developer Dave Henderson’s claim to about $1 million of Gibbston wine.
In a judgment released this week, Justice Christine French rules the wine belongs to the receivers of failed Henderson company, Anthem Holdings Ltd.
Henderson had argued the wine was owned by another of his companies, Anthem Wine Company, which had allegedly bought the wine – bottled and bulk product from the 2006, 2007 and 2008 vintages – from Gibbston Downs Wines two years ago.
Justice French states she’s in no doubt Anthem Holdings “took possession of the grapes, and then controlled, funded and managed the making of the wine, as well as asserting its ownership”.
“As [receivers’ lawyer Sean] McAnally put it, short of crushing the grapes itself, there was not much more Anthem Holdings could have done to ensure production.”
By contrast, the judge is satisfied Anthem Wine Company never bought the wine stocks.
“Anthem Wine Company has no title to assert against that of Anthem Holdings.”
Despite the transfer of an asset worth about $1m, there was no evidence of any written sale agreement nor agreed purchase price and no accounting of the transaction for GST.
The only written record was Henderson’s handwritten notes from a meeting, but it was only months later that he acquired control of the purported vendor company.
“After the alleged sale took place, several documents came into existence still showing Anthem Holdings as having an interest in the wine.”
Justice French accepts there was evidence supporting both sides of the argument and a lack of proper record keeping and lax accounting practices.
However she says she prefers the evidence of former Anthem Holdings chief executive Evan Vertue that Anthem Holdings owned the wine.
“Regrettably”, she couldn’t accept Henderson’s evidence.
“I found Mr Henderson an unreliable witness who was at times evasive and contradictory.
“In cross-examination he sought to deny, for example, that the vineyard had been re-branded the Anthem vineyard in late 2004, when that had been stated in his own written brief of evidence.
“His attempts to blame his solicitors and deny knowledge of the documents that did not suit his case – including documents which he had himself signed – were not plausible.”
Lender Perpetual Trust appointed receivers for Anthem Holding in August 2008.