Henderson hangs on to rooftop penthouse despite court order
The company that owns bankrupt Dave Henderson’s Christchurch penthouse has been ordered to shift him out so the mortgagee can take vacant possession.
The High Court made the order against the apartment owner, St Asaph Investments 2011 Ltd, on a request by the mortgagee, FM Custodians (FM), representing the Otago Mortgage Trust. FM had asked for orders that both St Asaph and Henderson ‘‘vacate and deliver up possession’’ of the spacious rooftop apartment.
Justice Rachel Dunningham granted the vacant possession order against St Asaph, saying no real defence had been established, but delayed the application directed at Henderson until a period for filing a notice of opposition expired. The court had earlier ordered St Asaph to pay FM $3.3m owing on its mortgage.
From his Queenstown home, Henderson said he wouldn’t be quitting his suite any time soon. He was unable to provide further details at present, he said. FM declined to comment.
In November last year, a Christchurch District Court judge sentenced Henderson to four months’ community detention for tax offences. The curfew from 7pm to 7am would have been served in the penthouse but the sentence, including a reparation order of $143,000, is in abeyance while Henderson’s appeal runs its course.
St Asaph’s director, Christchurch accountant Wayne Bailey, told the court Henderson had been in possession of the apartment since the company bought it but Justice Dunningham said Bailey had been unable to raise an arguable defence that a tenancy agreement was in place and that FM had consented to it.
Shares in St Asaph are owned by Trans-Tasman Trustee Services, which in turn is owned by Christchurch lawyers Clive Cousins and Grant Smith.
Henderson has also failed in a challenge to a Taxation Review Authority decision making him personally liable for a $1.7m GST bill regarding properties he sold to the Christchurch City Council.
Before cash changed hands, Henderson formed a company that bought debts owed by the property-selling companies for $1.
The debts were owed to another company in the Henderson group.
On settlement, all the proceeds remaining after mortgages were met were paid to the newly formed company, meaning nothing was left to pay the $1.7m GST.
Before Justice Warwick Gendall, Henderson argued, among other things, he was entitled to pay the debts owed to the newly formed company and therefore the actions were not an arrangement to avoid paying GST.
Justice Gendall disagreed, saying the transactions were connected and the timing significant.
‘‘I have no doubt they were all steps taken as part of an overall plan to strip the companies of funds with the precise effect of rendering them unable to meet their tax liabilities.’’
Justice Gendall awarded costs against Henderson.