Bergman v Bergman - [2014] NZHC 555

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-830 [2014] NZHC 555

BETWEEN
CHRISTIAAN DIEDRICK BERGMAN

Plaintiff

AND

ARTHUR THEODORUS BERGMAN Defendant

Hearing: 2,3, 4 December 2013

Appearances:

R C Mark for Plaintiff
D James for Defendant

Judgment:

24 March 2014

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on Monday 24 March 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 555 [24 March 2014]

[1] Christiaan (Chris) Bergman and Arthur (Arty) Bergman are brothers. They, together with three other brothers (Johannes/John, Benedict/Ben and Dirk/Derek) have, for some time, been involved in the business of selective rimu logging. In general terms, this involves locating blocks of land on which rimu are present, negotiating with the owners for access and cutting permission, identifying which trees can be felled, obtaining logging permits from the Ministry of Forestry, cutting down the trees, and milling, drying and selling the wood.

[2] The brothers’ rimu businesses have largely been undertaken through entities owned and controlled by them, including two companies that assume particular significance in this litigation, namely:

(a) Northland Kauri Ltd (NKL), which was incorporated in 2002 and was originally owned and controlled equally by John, Ben and Arty but which, since August 2011, has been solely owned and controlled by Arty;1

(b)Wild Life Properties Ltd (WLP) which was incorporated in 2001 and has always been equally owned and controlled by Chris and Dirk.2

[3] Chris and Arty are embroiled in a dispute about whether or not Arty has discharged a debt of $159,549.65 owed to Chris as a result of his transfer to Arty of shares in another family company, Mahoe Farm Kerikeri 1978 Ltd (the share debt).3

[4] The acknowledgement of debt signed by both brothers at the time of the share transfer in April 2009, stipulated that Chris would not demand payment for the shares until 2019 and that such demand could be made “in timber in part or in full satisfaction of the debt, of rights at a value (GST inclusive) to be agreed between us”. Failing such agreement, it said, payment would be “made in money by cleared
funds”.

1      Arty has fallen out with John and Ben.
2      Chris and Dirk have also fallen out.
3      That company was placed in liquidation and its place effectively taken by Mahoe Farms 2009
Ltd. All eleven of the Bergman siblings (together with two of their spouses) are shareholders in that company.

Chris’s claim, Arty’s defence and the litigation history

[5] In Chris’s statement of claim dated 29 November 2012 he acknowledges that he has accepted, in part payment of the share debt, a transfer by Arty of logging rights to two blocks at Ohura owned by Joanna and David Loft (the Loft blocks). These rights are said to be valued at $27,428.4 But Chris says that no other payments have been made…

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 555
Case: [2014] NZHC 555
Decision Date: 24 March 2014

CaseChat Overview and Summary

The case of Bergman v Bergman was heard by Ellis J in the High Court of New Zealand. Chris Bergman sued his brother Arty for repayment of a debt owed to him from a transfer of shares in 2009. Arty counterclaimed that he had discharged the debt by providing logging rights. The court found that Chris had failed to prove that the debt had not been discharged. The evidence, including several documents signed by Chris, suggested that he had accepted the logging rights as repayment. The court declined to make a declaration that the debt had not been paid and ordered that Arty was entitled to costs. The case highlights the importance of documentary evidence and the burden of proof in disputes between family members in business.

Orders