Bergman v Bergman - [2015] NZCA 278

IN THE COURT OF APPEAL OF NEW ZEALAND

CA204/2014
[2015] NZCA 278

BETWEEN	CHRISTIAAN DIEDRICK BERGMAN Appellant
AND	ARTHUR THEODORUS BERGMAN Respondent

Hearing:	21 May 2015
Court:	Ellen France P, Courtney and Kós JJ
Counsel:	A H Waalkens QC and R C Mark for Appellant J D McBride and D R James for Respondent
Judgment:	30 June 2015 at 10 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThe appellant must pay the respondent costs for a standard appeal on a band A basis plus usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France P)

Table of Contents

Para No

Introduction
Background

Arty acknowledges a debt to Chris

WPL and NKL enter into a joint venture

Chris acknowledges Arty has repaid the debt

Burden of proof
Was the Judge right to decline declaratory relief?

A credibility assessment

Reliance on contemporaneous documents

Evidence of repayment?

Result

[1]
[4]
[7]
[8]
[10]
[15]
[19]
[25]
[27]
[48]
[61]

Introduction

Christiaan (Chris) Bergman, the appellant, appeals against the decision of Ellis J to decline to grant a declaration that $132,161.65 of a debt owed to Chris by his brother Arthur (Arty) Bergman, the respondent, has not been repaid.[1] The debt arose in the context of ongoing business arrangements amongst the Bergman family and is due for repayment in 2019. Two years after the debt was formally documented, Chris signed a letter acknowledging Arty had repaid the debt. Chris subsequently disputed the debt had been repaid and brought a proceeding in the High Court seeking a declaration to that effect.
[1]Bergman v Bergman [2014] NZHC 555 [the High Court decision].
At trial, attention focused on Chris’s acknowledgement that the debt had been repaid. Chris said that he signed this acknowledgement under a misapprehension. Ellis J rejected this explanation as not credible. The Judge, however, accepted that if there was compelling evidence the debt had not been repaid that might require her to reconsider the weight that otherwise attached to Chris’s acknowledgement. Deciding this issue necessitated consideration of evidence about whether funds for repayment came from a joint venture arrangement between the parties. After considering this evidence, Ellis J concluded that it was not “sufficiently compelling to tip the evidentiary balance in Chris’s favour and (thus) to satisfy [her] that repayment has not been made”.[2] On this basis, declaratory relief was declined.
[2]At [51] (emphasis in original).
On appeal, counsel focused on two matters. First, whether the Judge had erred in her approach to the burden of proof and, second, whether Ellis J was correct in her assessment of the facts. We deal with these issues after first setting out the background.

Background

We largely adopt the description of the background events in the High Court judgment.[3] As Ellis J explained, Chris and Arty along with three other brothers, Johannes/John, Benedict/Ben and Dirk/Derek, have been involved for a period of time in the business of selective rimu logging. This involves locating blocks of land on which rimu stand, negotiating with the…

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 Bergman v Bergman

Details

AGLC: Bergman v Bergman [2015] NZCA 278
Case: [2015] NZCA 278
Decision Date: 30 June 2015 at 10 am

CaseChat Overview and Summary

Bergman v Bergman involved a dispute between siblings Chris and Arty Bergman over the repayment of a debt. The appeal was dismissed by the Court of Appeal of New Zealand. The Court found that the appellant, Chris, failed to establish that the debt had not been repaid by Arty. The Court found that the Judge's approach to the burden of proof was correct, and that the Judge was correct in declining to grant declaratory relief. The Court also found that the Judge's rejection of Chris's explanation for signing the acknowledgement that the debt had been repaid was an assessment of credibility, which the Court took into account in its review of the evidence. The Court found that the contemporaneous documents on which the Judge relied supported her conclusion. The Court also found that the joint venture evidence was not sufficiently clear to satisfy a court that repayment of the farm share debt had been made, but it was not sufficiently compelling to tip the balance the other way. The Court concluded that the appeal was dismissed and the appellant must pay the respondent costs for a standard appeal on a band A basis plus usual disbursements.

Orders