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…

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 [2014] NZHC 1567
Case: [2014] NZHC 1567
Decision Date: 4 July 2014

CaseChat Overview and Summary

In the case of Bergman v Bergman, Chris Bergman, the plaintiff, sought a stay of execution of a costs award against him pending an appeal to the Court of Appeal. The original matter involved a dispute between the Bergman brothers over a debt owed by Arty Bergman to Chris Bergman. The High Court had previously declined to make certain declarations sought by Chris, and Chris was ordered to pay costs. Chris subsequently filed a notice of appeal and an application for a stay of execution pending appeal. Arty opposed the application, and the matter was heard on the papers. The central issue before the court was whether the application for a stay should be granted, considering the various factors that must be weighed in such applications. The court considered factors such as the strength of the appeal, the ability of the applicant to pay the costs, the effect on third parties, and the balance of convenience. While the court recognised that Chris's appeal might have a reasonable chance of success, it found that other factors weighed against granting a stay. In particular, Chris did not demonstrate an inability to pay the costs and had declined proposals involving part payment. The court also found that the appeal did not affect third parties or have any significant public interest. Ultimately, the court declined to grant the stay, finding that the balance of convenience did not favour a stay of execution. The application was dismissed.

Orders