Blagojevic v Blagojevic HC Hamilton M433/97

[2001] NZHC 461

IN THE HIGH COURT OF NEW ZEALAND
HAMILTON REGISTRY M433/97

BETWEEN: SUSAN BLAGOJEVIC
Plaintiff

AND: MICHAEL BLAGOJEVIC
Defendant

HEARING: 6 June 2001

COUNSEL: E.A. Dawe for Plaintiff
A.L. Hassall Q.C. for Defendant

JUDGMENT: 7 June 2001

ORAL JUDGMENT OF HAMMOND J

[1] I have before me an application for an adjournment of matrimonial property proceedings, which concerns me greatly.

[2] In November 1997 Mrs Blagojevic commenced matrimonial property proceedings against Mr Blagojevic. The couple have extensive assets; perhaps in the order of several million dollars. The proceedings have dragged on lamentably. It has to be said that this is primarily to be laid at Mr Blagojevic’s door. He has been overseas at times; and he has taken far too long to get his papers in order.

[3] There are a number of Minutes on the file which detail the course this matter has taken. I do not propose to retraverse all those Minutes, which are a matter of record, here.

[4] It suffices for present purpose to note that as long ago now as November 2000, I was advised that mediation had failed; that the papers were then complete; and that a fixture was required. The parties then declined an opportunity to have the file transferred to Auckland to get an earlier fixture. A fixture was allocated in Hamilton for 14 May 2001. See my Minute of 22 November 2000.

[5] That fixture date was altered on 23 November 2000, by Minute, to 18 June 2001. This was to accommodate a May fixture which Mr Hassall Q.C. had in the Court of Appeal.

[6] Mr Hassall has confirmed that he immediately wrote to his client, advising him of this fixture. Chambers J, a visiting Judge, had been allocated the trial, and will be coming to Hamilton.

[7] Nothing further was then heard from counsel, despite a reservation of leave in my Minute of November 2000. Then, suddenly, on 6 June, Mr Hassall filed an application for an adjournment of the fixture on 18 June.

[8] As framed, it is on three grounds:

“ 1 . The defendant is presently in Yugoslavia and is not due to return to New Zealand until September 2001 and has commitments in Yugoslavia. 2. A major asset involved in this proceeding is the business of Le Grand Hotel, the operation of which business is dependent upon the renewal of the licence to the defendant pursuant to Section 18(2) of the Sale of Liquor Act 1989. The licence previously issues expired on 3 May 2000, and the defendant has made application for renewal. Such application has been the subject of objection by the Liquor Licensing Inspector and by the Police and the hearing of such application for renewal has been deferred until the return of the defendant to New Zealand. The value of the business of Le Grand Hotel cannot be determined until it is known whether or not the licence of the defendant will be renewed.

3. The plaintiff will not be prejudiced by an adjournment because all the major assets of the plaintiff and the defendant are already owned by them in equal shares as shareholders or partners or registered proprietors of an estate in fee simple.”

[9] No affidavit in support was filed. Counsel advanced further information by memorandum in support of that application. Put shortly, that memorandum conveyed that Mr Blagojevic has gone off to Yugoslavia. He claims to have business interests there, and that he is not able to be back for the fixture as set.

[10] Unsurprisingly, the application for an adjournment is strongly opposed. Ms Dawe says that her client has been trying to resolve this claim for something like four years now. Mrs Blagojevic has been on a state benefit; she has only recently been able to get occupation of the former matrimonial home; and she said that it is quite unfair to Mrs Blagojevic to have to wait, possibly several months, for a further trial date. Some of the issues of fact as set out in Mr Hassall’s memorandum are strongly resisted: for instance, the suggestion that the Blagojevic’s daughter is booked to go to Yugoslavia to see her father.

[11] The first ground of the application, namely that Mr Blagojevic is presently in Yugoslavia, seems to me to be entirely without merit. Mr Blagojevic knew of the fixture. He departed overseas, notwithstanding that knowledge. He has gone off to Belgrade before, and this occasion has all the appearance of simple disregard of a firm fixture. I do not accept Mr Hassall’s oral submission that Mr Blagojevic could have become confused with a possible approval not to be in New Zealand for a licensing hearing. Mr Blagojevic had the responsibility to clear this issue with his counsel before leaving, and he did not.

[12] I interpolate here that notice had been given requiring Mr Blagojevic for cross-examination. Ms Dawe said to me that she would waive that right if necessary, to get this matter on. Whether that is altogether wise may be debatable.

[13] The second point is also without merit. This is the point relating to the valuation of the Le Grand Hotel. Mr Hassall suggested that as a result of a pending enquiry into the liquor licence for that hotel, the business may have to be revalued. The suggestion is really that the loss of the licence would devalue that particular asset. On closer examination, there is nothing much in this argument either. To the extent the liquor licence comes into the valuation at all, it comes in on Mr Rickman’s valuation under the head of “Allowance for the Going Concern Nature of the Business” of $100,000. That is $100,000 in a total valuation of close to $750,000. And, it is de minimus in relation to the overall matrimonial assets, which are said to be about $5,000,000.

[14] As to the third ground, that there is no present prejudice to the plaintiff, there is not much, if anything, in that ground either. The wife has only recently gained occupancy of the former matrimonial home, but undoubtedly Mr Blagojevic has been firmly in control of the assets, notwithstanding the formal equality of ownership. And, Mrs Blagojevic is patently entitled to division now, and to be enabled to get on with her life.

[15] In the course of argument, however, other disquieting features emerged with respect to this proceeding. I asked what the total matrimonial assets are, and whether they are agreed. I was told the figure was about $5,000,000 and that there is not any real dispute under that head. I then asked whether there is any dispute as to equal sharing between these parties. Again I was told there is not, at least in principle. The third point, and the critical one, is that the real dispute, as so often happens, is how to divide the assets. That issue is thoroughly complicated by the nature of the assets; and the fact that doubtless they are encumbered.

[16] Ms Dawe tells me that her client wishes to have the former matrimonial home, and a cash adjustment. Mr Hassall says Mr Blagojevic cannot make a cash adjustment of possibly some hundreds of thousands of dollars.

[17] What began to concern me as the hearing progressed yesterday afternoon is that the issues are not clearly enough defined, and considerable hearing time could be saved if they are put into closer order. I have to confess that I had assumed that counsel would have attended to this. Perhaps the Court is at fault to some extent in not having required issues in this case.

[18] There is also some force in Mr Hassall’s argument that given the central issue (that of “remedy”) which is apparently before the Court, he will need, from time to time, to take instructions from his client as to the remedial solution to this particular case, as a hearing progresses.

[19] In the event, much less because there is any real merit in the adjournment application, than because the case needs to be in better order for trial, I propose to vacate the fixture. In so doing, however, I propose to take a firm hand in seeing this matter is brought promptly to trial. I give the following directions:

[a] Within seven days of this judgment, Ms Dawe is to prepare and file a consolidated schedule of the relevant assets; the asserted valuations; the share or shares claimed by the wife; and how her client asserts her shares are to be satisfied.

[b] Within ten days of delivery of that schedule, Mr Hassall is to prepare and file a response, clearly delineating what is accepted by his client, and what is not. Time is to be of the essence here. I do not, for one moment, accept that it is not possible, (with modern technology), for Mr Hassall to communicate with his client in Belgrade.

[c] The case is to be called again in my Chambers List on 4 July 2001. At that time I expect a clear delineation of what has been agreed and what has not. It should be possible for experienced counsel to narrow the areas of contention considerably.

[d] On 4 July 2001 I will use every endeavour to allocate a further fixture for the near future. I expect, with this exercise having been conducted, that the hearing time will shorten considerably.

[e] I also give notice to counsel that if a firm fixture cannot then be allocated in the near future, this proceeding will be place on a short call list, and it may be called on, on short notice. Counsel will have to be ready to proceed on short notice if called upon in that list, before a visiting Judge.

[f] The plaintiff will have costs of $1500.00 and her disbursements on this application. Those costs and disbursements are to be paid by 4 July 2001, time being of the essence.

Judgment accordingly.