Bergman v Bergman

[2014] NZHC 1567

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-830 [2014] NZHC 1567

BETWEEN

CHRISTIAAN DIEDRICK BERGMAN

Plaintiff

AND

ARTHUR THEODORUS BERGMAN Defendant

Hearing:	On the papers
Counsel:	R C Mark for the Plaintiff D James for the Defendant
Judgment:	4 July 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on 4 July 2014 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

R C Mark, Barrister, Kerikeri

D James, Palmer Macauley, Kerikeri

BERGMAN v BERGMAN [2014] NZHC 1567 [4 July 2014]

[1] On 24 March 2014 I refused to make declarations sought by Chris Bergman regarding the (non) repayment of a “farm share” debt owed to him by his brother, Arty Bergman: [2014] NZHC 555. My decision turned in large part on the burden of proof, which I held was borne by Chris.

[2]      It is at least implicit in the judgment that had the burden lain on Arty, the outcome would have been different.  It is also relevant to note that my judgment does not hold that the farm debt has been repaid by Arty; rather that Chris has failed to satisfy me that it has not been.  This deeply unsatisfactory state of affairs is in large part a reflection of longstanding, chaotic, complex and acrimonious personal and business relationships between the Bergman brothers.

[3]      On 16 April Chris filed a notice of appeal in the Court of Appeal.

[4]      During the latter part of April and early May Chris took enforcement steps.

[5]      On 16 May 2014 Chris filed an application for a stay of execution pending appeal.  The stay sought necessarily relates only to the award of costs against him, which he advises total $34,753.50.

[6]      On  23  May  2014,  before  the  application  for  stay  could  be  served,  a bankruptcy notice was served on Chris.

[7]      I then asked the Registry to ascertain Arty’s position in relation to the stay.  In due course a notice of opposition and supporting memorandum was filed.

[8]      Counsel subsequently also advised that they were content for me to deal with the application on the papers.

Discussion

[9]      The  principles  relevant  to  applications  for  stay  pending  appeal  are  well known.1    The factors generally to be considered in balancing the competing rights are:

(a)        Whether the appeal may be rendered nugatory by the lack of a stay; (b)       The bona fides of the applicant as to the prosecution of the appeal; (c)   Whether the successful party will be injuriously affected by the stay; (d)     The effect on third parties;

(e)       The novelty and importance of questions involved; (f) The public interest in the proceeding; and

(g)      The overall balance of convenience.

[10]     The  apparent  strength  of  the  appeal  now  appears  also  to  be  generally recognised as an additional factor.

[11]     In the present case, Chris Bergman relies largely on what is submitted to be the strength of the appeal, which I have no hesitation in accepting is pursued by him in good faith.  While I do not propose to comment in any detail on the merits, I have already indicated above that if my finding on the burden of proof is found to be wrong it seems quite likely that Chris’s appeal would succeed.2

[12]     But those are the only matters that (slightly) favour a stay.   The following factors militate against one:

1      These are the factors relevant to the exercise of discretion under r 12 of the Court of Appeal (Civil) Rules 2005.  Notwithstanding Mr Mark’s reliance on it, I do not accept that r 17.29 has any bearing on the matter.

2      I record that Mr James has nonetheless indicated his intention to support my judgment on a variety of other grounds.

(a)      although it seems that Chris would have some difficulty in finding the money to meet the costs award now, he clearly owns valuable assets and does not appear to contend that he is wholly unable to pay;

(b)he also does not contend that his appeal rights would be rendered nugatory if payment were required to be made now.  Indeed, it is quite apparent that they would not be;

(c)      he  has  declined  alternative  proposals  put  forward  by  Mr  James involving part payment and has not made any offer to have the money held on trust pending the outcome of the appeal.

[13]     As for other matters, neither brother has sought to contend that the appeal has any relevant effect on third parties.  And although, due to the unusual nature of the original proceeding (see [15] of my substantive judgment) there is necessarily some novelty involved in the issues on appeal, it cannot be said that those questions are of importance to anyone other than the parties.  Nor is there any public interest in the appeal.

[14]     In light of all the above matters it cannot, in my view, fairly be said that the balance of convenience favours a stay. The application is declined.

Rebecca Ellis J