Apostolakis v Kolich - [2012] NZHC 212

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1453 [2012] NZHC 212

BETWEEN KATHY APOSTOLAKIS Applicant

ANDKATARINA KOLICH First Respondent

ANDDOROTHY CLARE KENNELLY Second Respondent

CIV-2011-485-2508

AND BETWEEN KATHY APOSTOLAKIS Plaintiff
ANDKATARINA KOLICH First Defendant
ANDDOROTHY CLARE KENNELLY Second Defendant

Hearing: 20 February 2012 (Heard at Wellington)

Counsel: K. Apostolakis - Plaintiff/Applicant in person
M.A.F. Gilkinson - Counsel for First Respondent/First Defendant M.R. Sherwood King - Counsel for Second Respondent/Second Defendant

Judgment: 22 February 2012

JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

This judgment of Associate Judge Gendall was delivered on 22 February 2012 at
3.30 pm under r 11.5 of the High Court Rules.

Solicitors: Mackay & Gilkison, Solicitors, PO Box 5240, Wellington
Ian McCulloch Max Tait Legal, Solicitors, PO Box 50565, Porirua

K APOSTOLAKIS V K KOLICH & DC KENNELLY HC WN CIV-2011-485-1453 [22 February 2012]

Introduction

[1] Before the Court are two applications brought by Ms Kathy Apostolakis (the plaintiff) as the plaintiff and applicant in these two proceedings. The defendants in the proceedings are the plaintiff’s sister-in-law Katarina Kolich (Ms Kolich) and the plaintiff’s mother Dorothy Clare Kennelly (Mrs Kennelly).

[2] The first application in proceeding CIV-2011-485-1453 is an application to sustain two caveats. The second application in proceeding CIV-2011-485-2508 seeks summary judgment with respect to a separate claim the plaintiff says she has against Ms Kolich and Mrs Kennelly. Both applications are opposed. In addition, before me the defendants sought to strike out the plaintiff’s claim against them in proceeding CIV-2011-485-2508.

Background Facts

[3] Although it is rather difficult here to discern all of the appropriate background facts to this matter, I now set out the position as best I can tell from the material before the Court.

[4] The plaintiff and a Mr Damir De Polo (Mr De Polo) were in an acknowledged defacto relationship being a relationship in the nature of a marriage from July 1996 to July 2004.

[5] Following their separation in 2004, difficulties arose concerning division of their property. This culminated in a judgment being given on 13 October 2009 by Judge PR Grace in the Family Court in matrimonial property proceedings between the couple brought in that Court.

[6] Amongst other things, that Family Court judgment dealt with an issue concerning the parties’ previous relationship home at 12 Colville Street, Wellington (the property). That property throughout was in the name of the plaintiff alone but Judge Grace at [22] of his decision found clearly that the property was the relationship home of the plaintiff and Mr De Polo at separation.

[7] According to Judge Grace’s judgment, the property had a rating valuation at September 2007 of $540,000.00 and, at the time of his judgment in October 2009, it was subject to charges securing a $24,000.00 debt to Johnson Lawrence Nominee Company Limited, a further $170,000.00 debt to Hayman Lawyers Nominee Company Limited and a further debt in favour of Pioneer Limited of $8,897.50.

[8] In his judgment Judge Grace dealt with the property in two ways. First, he allowed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Apostolakis v Kolich

Details

AGLC: Apostolakis v Kolich [2012] NZHC 212
Case: [2012] NZHC 212
Decision Date: 22 February 2012

CaseChat Overview and Summary

In the case of Apostolakis v Kolich, the High Court of New Zealand was presented with two applications brought by Kathy Apostolakis against Katarina Kolich and Dorothy Clare Kennelly. The first application sought to sustain two caveats, while the second sought summary judgment on claims of negligence, deceit, and fraud against the defendants. The defendants opposed the applications and sought to strike out the plaintiff's claim.

The court found that the caveats were no longer valid as they had been removed or rejected, and the application to sustain them was dismissed. Regarding the summary judgment application, the court held that the plaintiff's statement of claim was speculative, without foundation, and failed to provide any cogent details of the allegations against the defendants. The court also found that the plaintiff's claims were not supported by any evidence and were likely to be unsuccessful.

Furthermore, the court held that the plaintiff's proceeding was an abuse of process, and the claim was struck out. The defendants were awarded costs on an indemnity basis, as the plaintiff had acted vexatiously, frivolously, improperly, and unnecessarily in bringing the proceedings against them.

Orders