



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Kirk 
          v. Kirk,







2007 
          BCCA 63



Date: 20070124





Docket: CA033877;

CA033878



CA033877

Between:

Anna 
    Aaltje Kirk, also known as Anna Kirk

Appellant

(
Plaintiff
)

And

Denis 
    Fredrick Kirk, also known as Denis Frederick Kirk

Respondent

(
Defendant
)



CA033878

Between:

Anna 
    Aaltje Kirk, also known as Anna Kirk

Appellant

(
Plaintiff
)

And

Denis 
    Fredrick Kirk, also known as Denis Frederick Kirk,

Hyper 
    Technologies Inc., White Dragon Enterprises Inc.

And 
    Faronics Corporation

Defendants

(
Respondents
)








Before:


The 
          Honourable Madam Justice Prowse




The 
          Honourable Madam Justice Huddart




The 
          Honourable Mr. Justice Mackenzie



Oral Reasons for Judgment




I. 
          Pietrow

G.F. Gregory


Counsel for the Appellant




P. 
          Daykin


Counsel for the Respondent D. Kirk and Defendants 
          Hyper Technologies Inc. & White Dragon Enterprises




D.R. 
          Bennett


Counsel for the Defendant Faronics Corp.




Place 
          and Date:


Vancouver
,
British Columbia




24 January 2007



[1]

MACKENZIE, J.A.
: This is an appeal from an order refusing 
    to add the Corporate respondents Hyper Technologies Inc. and Faronics Corporation 
    as defendants in a family law action commenced by the plaintiff wife against 
    the defendant husband.  The reasons are reported at 2006 BCSC 277.

[2]

The wife applied to add the two corporations together with White Dragon 
    Enterprises pursuant to Rule 15(5) of the
Rules of Court
.  The 
    application to add White Dragon, a holding company wholly owned by the husband, 
    was unopposed and granted by the chambers judge.  At the same time, the judge 
    granted applications by the husband and respondent companies pursuant to Rules 
    19(24) and 57 to dismiss a separate action by the wife advancing claims in 
    trust over assets of the respondents and ancillary equitable relief (the 
    second action).  Claims in the second action overlap the claims in the family 
    law action.

[3]

The gravamen of the wifes claim essentially is that the husband and 
    the companies have implemented a corporate scheme to defeat the wifes claim 
    to family assets.  As the matter was framed in this Court, the appellant accepted 
    that the appellant did not have a claim in law directly against the assets 
    of Hyper Technologies and Faronics.  I am satisfied that the chambers judge 
    was correct in striking the pleadings proposed by amendment in the family 
    law action and the pleadings in the second action as he did.

[4]

However, in this Court the appellant advances a different claim, not 
    against the assets directly but based on her position as shareholder arising 
    out of the respective division family assets.  That claim is essentially a 
    claim in fraudulent conspiracy to diminish the value of the wifes potential 
    shareholdings in Hyper Technologies Inc. and White Dragon Enterprises Inc. 
    and, through White Dragon, which is presumably an alter ego of the husband, 
    the shares held by White Dragon in Faronics.

[5]

With some reluctance I think that the wife should be given an opportunity 
    to attempt to plead those claims in a satisfactory manner.  That would be 
    a matter for the trial court to consider.

[6]

Accordingly, in my view, the form of the order in this Court should 
    be to uphold the decision of the chambers judge striking the proposed amended 
    pleadings in the family action with liberty to re-apply to file revised pleadings 
    and to join the two corporate defendants on the basis of those pleadings.  
    Also, to strike the statement of claim in the second action leaving the writ 
    of summons with a view to permitting the appellant to file a new statement 
    of claim with the revised cause of action and leaving it to a judge in the 
    Supreme Court to decide, firstly, whether that is a proper pleading and, secondly, 
    if so, whether that action should be joined with the family law action for 
    purposes of trial.

[7]

PROWSE, J.A.
: I agree.

[8]

HUDDART, J.A.
: I agree.

[9]

PROWSE, J.A.
: The order would be in the form indicated 
    by Mr. Justice Mackenzie.  Now, costs.

(submissions by counsel)

[10]

MACKENZIE, J.A.
: In my view, the pleadings that were before 
    Mr. Justice Josephson and before us were misconceived.  There is no good reason 
    in my view why the action could not have been framed properly at a much earlier 
    stage of these proceedings.  Accordingly, I would award the respondents costs 
    of this application both here and before Mr. Justice Josephson.

[11]

Any application for amended pleadings in this matter should be filed 
    not later than two weeks from today in the Supreme Court in order avoid further 
    delay this already too protracted proceeding.

[12]

I should add this, just as a final comment, Mr. Gregory, it appears 
    that your client is contemplating going down a road of advancing a claim in 
    fraudulent conspiracy against these companies.  I am sure that you will inform 
    your client that there are severe cost penalties for advancing such a claim 
    and not succeeding.  That strategy is a high risk strategy in terms of potential 
    costs consequences.

[13]

PROWSE, J.A.
: I agree with everything that Mr. Justice 
    Mackenzie has said.

[14]

HUDDART, J.A.
: I agree.

The Honourable Mr. Justice Mackenzie


