B Property Group Ltd (BPG), whose sole director is Sydney-based Andrew McIntosh, applied to the High Court for leave to appeal the court’s earlier decision ordering BPG to disclose information about how the funds have been used.
A ruling by the court last July revealed Mr McIntosh offered Singapore-based restaurateur, Kurt Wagner, an opportunity to invest in BPG’s proposed Kitea Hotel in central Wānaka in early 2022.
However, when he visited New Zealand six months later and saw the lack of progress on the hotel, he became concerned about how the funds had been used.
In May last year, unhappy with Mr McIntosh’s response to his formal request for information relating to the funds, Mr Wagner went to the High Court.
A ruling by Justice Rachel Dunningham on July 28 ordered all the requested documents be provided to Mr Wagner within days.
The documents disclosed showed the money had been distributed as loans and other payments to "related parties" of Mr McIntosh, but a lack of detail prompted Mr Wagner to apply to the court for greater disclosure.
In a ruling on November 15, Associate Judge Dale Lester said it was "simply not credible" BPG had made the payments without any documentary record.
Noting the funds had been distributed within "a matter of weeks" after Mr Wagner transferred the money to BPG, Associate Judge Lester ordered Mr McIntosh to provide a "full narrative" in respect of each payment - including how they applied to the hotel development - within 10 working days.
That prompted BPG to apply for leave to appeal on a series of grounds that included the judge not having jurisdiction to deal with the matter.
In the latest decision, released this week, Associate Judge Lester ruled he did have the jurisdiction, and that one of the other grounds for appeal — that some of the disclosure orders were made against Mr McIntosh personally when he was not a party to the proceeding - was "not a matter of substance".
As BPG’s sole director, Mr McIntosh was the only person with the ability to give an affidavit on behalf of the company, and attempting to appeal on that ground "smacks of an attempt to delay", he said.
Alternative grounds for appeal related to the extent of the information sought by Mr Wagner.
Associate Judge Lester said it was clear the orders he made in his November judgement were partly in response to Mr McIntosh’s "incredible" claim that much of the information did not exist in written form.
He declined leave for BPG to appeal, saying Mr McIntosh continued to resist providing information Mr Wagner was legally entitled to.
"Mr Wagner invested $10,000,000 into Mr McIntosh’s company, and in one form or another, all of that money has gone to benefit Mr McIntosh or entities associated with him.
"Mr McIntosh cannot be surprised that he is required to give an explanation as to what happened to the funds, and his attempts to delay doing so speaks for itself."
Seven years after Mr McIntosh announced plans for the Kitea Hotel, the Brownston St site is boarded up, and no progress has been made on the build since a concrete slab was laid in late 2021.
BPG’s website now refers to the venture as The Theodore hotel.
Mr McIntosh has been in Queenstown this week giving evidence at an Environment Court appeal regarding his contentious proposal for a 24-unit luxury lodge in Bob’s Cove, about 15 minutes’ drive from the resort’s town centre.
