Erceg v Erceg - [2016] NZCA 7

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ORDER THAT NO PERSON OTHER THAN THE PARTIES CAN ACCESS THE COURT FILE WITHOUT THE LEAVE OF A JUDGE.

ORDER PROHIBITING PUBLICATION OF FACTS RELATING TO SETTLEMENT OF FUNDS ON THE ERCEG FAMILY TRUST REFERRED TO AT THE HEARING.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA217/2015 [2016] NZCA 7

BETWEEN
IVAN VLADIMIR JOSEPH ERCEG

Appellant

AND

LYNETTE THERESE ERCEG AND DARRYL EDWARD GREGORY AS TRUSTEES OF THE ACORN FOUNDATION TRUST

First Respondents

LYNETTE THERESE ERCEG AND DARRYL EDWARD GREGORY AS TRUSTEES OF INDEPENDENT GROUP TRUST

Second Respondents

Hearing: 17 September 2015

Court:

Ellen France P, Wild and Miller JJ

Counsel:

C R Carruthers QC and R B Hucker for Appellant
G M Coumbe QC and F C Monteiro for First and Second
Respondents

Judgment:

4 February 2016 at 11 am

JUDGMENT OF THE COURT

A The appeal is dismissed.

ERCEG v ERCEG [2016] NZCA 7 [4 February 2016]

B The appellant is to pay the respondents’ costs for a standard appeal on a

band A basis with usual disbursements.

C Order that no person other than the parties can access the Court file without the leave of a Judge.

D Order prohibiting publication of facts relating to settlement of funds on the

Erceg Family Trust referred to at the hearing.

REASONS OF THE COURT

(Given by Wild J)

Table of Contents

Para No.

Introduction [1]

Background [2]

Question One: Standing? [10]

Question Two: Incorrect exercise of discretion by the Judge?

The test for disclosure

The opposing arguments [20]

Our view as to the correct approach [25]

Courtney J’s approach [39]

Did Courtney J err? [49]

Question Three: What disclosure? [54]

Result [55]

Introduction

[1] This appeal, from a judgment of Courtney J delivered in the High Court at

Auckland on 27 March 2015,1 raises three questions:

(a) Standing: Did the Judge err in holding that the appellant had no standing to seek disclosure of information relating to the two trusts of which he was a beneficiary, and that the respondent trustees therefore
had no duty to disclose the information requested?

1 Erceg v Erceg [2015] NZHC 594 [decision under appeal].

(b)Discretion: If the Judge erred on issue (a), did she also err in holding that she would have exercised her discretion against ordering any disclosure to the appellant, had she been required to rule?

(c) What disclosure?: If the Judge erred both on (a) and (b), what documents or information should the Judge have ordered be disclosed to the appellant?

Background

[2] The first respondents are the trustees of the Acorn Foundation Trust. The second respondents are the trustees of the Independent Group Trust. As no distinction is required, we will refer to them as “the trustees”. The two Trusts (the Trusts) were settled by the late Mr Michael Erceg in 2004 and 2002 respectively.

[3] Although not named, the appellant was within the classes of both discretionary and final (or residuary) beneficiaries…

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 Erceg v Erceg

Details

AGLC: Erceg v Erceg [2016] NZCA 7
Case: [2016] NZCA 7
Decision Date: 4 February 2016 at 11 am

CaseChat Overview and Summary

In the case of Erceg v Erceg, the Court of Appeal of New Zealand considered an appeal by Ivan Erceg against a decision of the High Court, which dismissed his claim for disclosure of trust documents relating to two trusts of which he was a beneficiary. The appeal raised three main issues: (1) whether the appellant had standing to seek disclosure of trust documents; (2) if so, whether the High Court judge had erred in concluding that she would have exercised her discretion against ordering disclosure; and (3) if so, what disclosure should have been ordered. The Court held that the appellant had standing to seek disclosure of trust documents as a beneficiary, contrary to the decision of the High Court judge. However, the Court found that the judge had not erred in concluding that she would have exercised her discretion against ordering disclosure, given the circumstances of the case. The Court also noted that it was not required to answer the third question, but would have ordered limited disclosure if necessary. Ultimately, the appeal was dismissed, and the appellant was ordered to pay the respondents' costs.

Orders