An elderly couple accused of misusing their enduring power of attorney to withdraw money from a friend’s account have successfully battled a freezing order on their own accounts.
But a judge has warned that despite the pair’s victory, there remains a “serious question” to be tried as to whether they have inappropriately taken about $200,000.
In a decision from the High Court at Auckland, released in December, Justice Laura O’Gorman said Rosemary and Maurice Whitham had met the plaintiff, Anthony Piacun, in 2009 when their children mowed lawns for his late mother.
“They say when they first met Mr Piacun, he was unwell, not working and lived off his mother’s pension. When Mr Piacun’s mother died, the Whithams were the ones who paid for his mother’s funeral,” the judge said in the written decision.
They also helped to renovate Piacun’s two properties in Sandringham and Thames, which were both in a state of disrepair and owing about $50,000 in unpaid rates.
They helped negotiate the penalties for him and paid the remaining balance of $23,000, they said.
The pair helped Piacun get a loan to repay them for the renovation expenses.
When Piacun had a stroke, the couple were given enduring power of attorney (EPOA), though they deny using this power to withdraw money from his account, instead saying they were given the power through a different means.
“It is common ground that Mr Piacun has never lacked mental capacity throughout this time, so there is no evidence that he was incapable of agreeing to the arrangements with the Whithams,” Justice O’Gorman said.
Forensic accountant Paul Macnicol provided a report showing $811,300 was transferred from Piacun’s account into accounts associated with the Whithams over the years. Of that, $157,700 of that has been repaid by them, and $430,000 was a loan Piacun gave to them. Beyond some other expenses, including for repairs and renovations, the balance of approximately $200,000 was unexplained.
“Overall, it was Mr Macnicol’s opinion that the defendants appeared to have treated the plaintiff’s bank accounts as their own,” the judge said.
It was on that evidence that Justice Geoffrey Venning granted a without notice freezing order on the Whithams’ accounts in October 2025, which the couple applied to discharge about a week later.
“They say the impact of this order has been oppressive, preventing them from operating bank accounts for their day-to-day living needs in circumstances where there are no material assets held in those bank accounts that are at risk of dissipation. With respect to the substantive claim, they deny any wrongdoing,” Justice O’Gorman said.
The Whithams, who own a property development business, said they were currently working on subdivisions and that the freezing orders stopped them meeting business expenses and funding living expenses. Their cards have been cancelled and they cannot access their accounts online.
“The Whithams say that none of this is justified, because they have not committed any wrongdoing. Their position is that they have provided significant work and assistance to Mr Piacun to his financial benefit, and they can explain the nature of all the payments from his bank account.”
Justice O’Gorman said the issue of wrongdoing could not be determined in the current hearing, but said “there remains a serious question to be tried about whether Mr and Mrs Whitham have breached any duties in operating Mr Piacun’s bank account.”
The lawyer for the couple, who are in their 70s, said they have been falsely accused of misappropriation, and that it was distressing for them to have to go to the bank in person to withdraw money.
Counsel for Piacun said the Whithams’ evidence was inconsistent, self-serving and contradictory.
He “observes that numerous payments continued to be made to their bank accounts sporadically well after the renovation works had concluded. He says there has been no adequate explanation for these ‘additional transfers’”.
Justice O’Gorman said she was not satisfied there were any material assets in the frozen accounts, so the only effect of the orders was to prevent them meeting their ordinary living expenses and commitments.
“That outcome is oppressive and outside the proper scope of a freezing order,” she said.
She discharged the freezing and ancillary orders and reserved costs. It is not yet known when a substantive hearing on the wider issue will be held.
Melissa Nightingale is a Wellington-based reporter who covers crime, justice and news in the capital. She joined the Herald in 2016 and has worked as a journalist for 12 years.