Brkic v Stalker - [2016] NZHC 2259

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-003066 [2016] NZHC 2259

BETWEEN
GORDAN BRKIC, EMILJA BRKIC

AND NAGI FALTAUS AS TRUSTEES OF THE MADEG TRUST

Plaintiff

AND

MARK DONALD STALKER First Defendant

AND

CAROLINE RUTH WHITE Second Defendant

AND

CRUMMER TRUSTEES NO 82
LIMITED
Third Defendant

AND

MARK DONALD STALKER Fourth Defendant

Hearing: 12 May 2016

Appearances:

P Rice for the Plaintiffs
L Herzog for the Defendant

Judgment:

23 September 2016

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 23 September 2016 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

St Mark Law, Auckland
Webster Malcolm, Warkworth

L Herzog, Auckland
P Rice, Auckland
G Wiles, Auckland

Date.......................................

BRKIC & Ors v STALKER & Ors [2016] NZHC 2259 [23 September 2016]

Introduction

[1] The plaintiffs, Mr and Mrs Brkic and Nagi Faltaus, claim summary judgment against the first defendants1 for the full amount of their claim of $109,820.00 plus interest.2

[2] The plaintiffs are the trustees of the Madeg Trust, Mr and Mrs Brkic’s family trust. Mr Faltaus, their co-trustee, is the trust’s solicitor. The basis of their claim is a loan agreement entered into between themselves and the first defendants (as trustees of the Grafton Road Trust) on 9 November 2011. Pursuant to the terms of that agreement the plaintiffs provided vendor finance of $109,820 on the sale of a Unit owned by the Madeg Trust to the trustees for the Grafton Road Trust; repayment of the loan was to be made by 12 May 2012 - without set-off, counter claim or deduction; and in the event of default the borrowers would be liable for penalty interest at the rate of 22% per annum.

[3] The loan has not been repaid. Under the terms of the loan each of the first defendants is prima facie liable for repayment plus interest. Each however oppose summary judgment, claiming to have an arguable defence to the plaintiffs’ claim.

[4] Before turning to discuss the essential matters at issue, I pause momentarily to record that the plaintiffs no longer pursue judgment against Mr Stalker in his capacity as first named first defendant or second defendant3. At the hearing counsel for the plaintiffs and counsel for Mr Stalker advised that it is agreed that it would not be appropriate for judgment to be pursued against him. The claims against him are struck out accordingly.

[5] At issue is whether the remaining first defendants have an arguable counterclaim relating to the loan agreement and the sale and purchase agreement that the parties entered into on the same date. They allege that they were induced to enter
into the agreement for sale and purchase by fraud (allegedly by misrepresentation)

1      In this judgment references to “first defendants” should therefore be taken to mean
Carolyn White and Crummer Rd Trustees No.2 Ltd.
2      at 22% for the repayment of a vendor loan.
3      Mr Stalker is sued in his dual capacity as borrower and guarantor.

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 Brkic v Stalker

Details

AGLC: Brkic v Stalker [2016] NZHC 2259
Case: [2016] NZHC 2259
Decision Date: 23 September 2016

CaseChat Overview and Summary

The plaintiffs, Mr. and Mrs. Brkic and Nagi Faltaus, trustees of the Madeg Trust, sought summary judgment against the first defendants for the repayment of a vendor loan of $109,820 plus interest. The defendants opposed the claim, alleging misrepresentations and fraud by the plaintiffs in connection with the sale of a unit and the associated loan agreement. The central issue before the court was whether the defendants had an arguable defence to the plaintiffs' claim of loan repayment. The court found that there were unresolved factual disputes, particularly regarding the circumstances surrounding the deletion of vendor warranties in the sale and purchase agreement, and the defendants' claims of fraudulent misrepresentation. Given the contested nature of these facts, the court concluded that summary judgment was not appropriate, as the outcome of the case depended on disputed issues of fact. The court reserved costs and scheduled the case for further directions.

Orders