AThe second affidavit of Mr Erceg will form part of the record available for consideration by this Court on the forthcoming appeal. But we do not give leave at this stage for it to be admitted.
B We do not give leave for the affidavit of Mr Leonida to be admitted.
C The affidavit of Ms Harper is admitted.
DPursuant to R 46 we direct the Registrar to request the Associate Judge to provide a report on the matters to which Ms Harper deposes.
[1] On 1 September 2008 Associate Judge Hole gave judgment by way of summary judgment on Balenia’s claim for specific performance of a settlement agreement between itself as seller and Mr Erceg as buyer of three super yachts. On 29 January this Court is to hear an appeal by Mr Erceg against the order for specific performance pronounced against him. Mr Erceg has applied to this Court under r 45 of the Court of Appeal (Civil) Rules 2005 for leave for leave to file further evidence.
[2] The application relates to three affidavits: one by Mr Erceg, a second by Mr John Leonida, a partner of Clyde & Co, solicitors, London, and the third by Ms Bethany Harper, a solicitor who was present at the hearing before the Associate Judge. The chronology of events was as follows:
27 June 2008
Statement of claim by Balenia filed together with application for summary judgment supported by affidavits of Anthony John Nicholson, Franklin William Taylor and Valery Cheshinsky.
5 July 2008
Service of documents.
7 July 2008
Notice of opposition by defendants.
9 July 2008
Mr Erceg arrives in New Zealand and meets counsel. His affidavit in opposition filed. Harrison J directs defendants to file any further affidavits in answer by 23 July 2008 and Balenia to file any affidavits in reply by 8 August 2008.
23 July 2008
Time fixed for filing further defence affidavits expires. Mr Erceg elects not to file further affidavits.
29 July 2008
Defence solicitors advise that Mr Erceg’s affidavit, intituled in the matter of injunction proceedings, will be relied upon in defence of the application for summary judgment.
8 August 2008
Time fixed for plaintiff’s affidavits in reply.
Defendant’s solicitors confirm that they are relying solely on Mr Erceg’s affidavit of 9 July for the purposes of summary judgment application.
18 August 2008
Plaintiff’s reply affidavits by Mr Taylor and Mr Nicholson filed and served.
21 August 2008
Summary judgment hearing.
1 September 2008
Judgment delivered.
[3] Mr Erceg’s company, Sensation Yachts Ltd, had contracted with Balenia to design and build five super luxury yachts for it. Disputes arose, resulting in a series of arbitration hearings and…
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.
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AGLC
Erceg v Balenia Ltd [2008] NZCA 535
Case
[2008] NZCA 535
Decision Date
CaseChat Overview and Summary
Ivan Vladimar Joseph Erceg appealed against a summary judgment order for specific performance of a settlement agreement, which was between Balenia Ltd and himself. Balenia had claimed specific performance of the settlement agreement, which was for the sale of three super yachts. The Court of Appeal considered Mr Erceg's application for leave to file further evidence. The application related to three affidavits, one by Mr Erceg, a second by Mr John Leonida, a partner of Clyde & Co, solicitors, London, and the third by Ms Bethany Harper, a solicitor who was present at the hearing before the Associate Judge. The court considered whether the evidence from Mr Erceg, Mr Leonida, and Ms Harper should be admitted. The court decided that the second affidavit of Mr Erceg will form part of the record available for consideration by this Court on the forthcoming appeal. However, the court did not give leave at this stage for it to be admitted. The court also decided that the affidavit of Mr Leonida should not be admitted. The court decided that the affidavit of Ms Harper should be admitted as it was potentially germane to the decision of the Court of Appeal on the forthcoming hearing as to whether the summary judgment should stand. The court directed the Registrar to request the Associate Judge to provide a report on the matters to which Ms Harper deposes.