Bergman v Bergman

[2013] NZHC 910

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2012-488-830 [2013] NZHC 910

BETWEEN  CHRISTIAAN DIEDRICK BERGMAN Plaintiff

ANDARTHUR THEODORUS BERGMAN Defendant

Hearing:         10 April 2013

Appearances: R C Mark for Plaintiff

D James for Defendant

Judgment:      29 April 2013

RESERVED JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on   29 April 2013 at 5:00pm

pursuant to Rule 11.5 of the High Court Rules.

...................................

Registrar/Deputy Registrar

Solicitors:

R C Mark, P O Box 172 Kerikeri, for Plaintiff

Email:   [e-mail]

Palmer Macauley (David James) P O Box 576 Kerikeri, for Defendant

Email:   [e-mail]

BERGMAN V BERGMAN HC WHA CIV-2012-488-830 [29 April 2013]

[1]      The questions in this summary judgment application are:

(a)      Has  Arty  Bergman  satisfied  me  that  he  has  cleared  his  debt  of

$159,549.65 to his brother, Chris, by making timber rights available to

Chris?

(b)Has Arty Bergman satisfied me that Chris has no defence to his claim that he has overpaid Chris by $39,950.35?

Christiaan Bergman (Chris) and Arthur Bergman (Arty) were shareholders in a family company, Mahoe Farm Kerikeri 1978 Ltd.  Chris sold his shares to Arty under a written agreement bearing the date 26 April 2009.   The vendor’s name in the agreement is Christopher Bergman, but there is no dispute that Chris is the vendor under the agreement.  The price of the shares was $159,549.65, but could be adjusted on reassessment by the Inland Revenue.   Chris transferred the shares to Arty on settlement, 15 April 2009, but agreed to be paid later. Clause 3 said:

The Price will be satisfied by the Purchaser signing and handing to the Vendor or the Vendor’s solicitor on settlement and acknowledging on a deed in identical terms to the copy attached and marked ‘B’.

[2]      There is an acknowledgement of debt, also dated 26 April 2009, in the following terms:

Christopher Bergman and I, Arthur Bergman, acknowledge:

•I owe you $159,549.65 (“the Debt”) which amount was advanced to me by you on 15 April 2009.  The date is repayable interest-free and upon demand being made by you.  The words “upon demand” will have the same meaning assigned to them in the Fifth Schedule of the Chattels Transfer Act 1924, but demand may not be made before 15

April 2019.

•You may demand payment in timber in part or in full satisfaction of the debt, of rights at a value (GST inclusive) to be agreed between us, and failing agreement, then payment will be made in money by cleared funds.

Both Chris and Arty have signed the acknowledgement of debt.

[3]      Arty contends that he has satisfied the debt out of timber rights.   Chris acknowledges that Arty transferred logging rights to two blocks at Ohura owned by Joanna Loft and David Loft, which Chris values at $27,428.00, in part repayment of the debt, but says that no other payments have been made and no other timber rights have been transferred to him.  In this proceeding he seeks declarations that Arty has…