Erceg v The Hong Kong and Shanghai Banking Corporation Limited HC Auckland Civ-2008-404-006898

[2008] NZHC 2635

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-006898

BETWEEN  IVAN VLADIMAR JOSEPH ERCEG Plaintiff

ANDTHE HONG KONG AND SHANGHAI BANKING CORPORATION LIMITED Defendant

Hearing:         22 October 2008

Appearances: L Ponniah for Plaintiff

BJ Burt for Defendant

Judgment:      22 October 2008

JUDGMENT OF JOHN HANSEN J

Solicitors: Corban Revell,

PO Box 21-180, Waitakere City, Auckland

Chapman Tripp, PO Box 2206, Auckland

ERCEG V THE HONG KONG AND SHANGHAI BANKING CORPORATION LIMITED HC AK CIV-2008-

404-006898  22 October 2008

[1]      In  this  matter  Mr Burt,  who  has  not  yet  formally  filed  documents  in opposition to the substantive application for interim injunction, has made a number of valid points in relation to breaches by the plaintiff of the relevant agreements.

[2]      The essential dispute raised by Mr Erceg is that there was a pre-contractual agreement that the valuer to carry out the valuation of the relevant property would attend  at  the  property  with  Mr Erceg,  who  would  point  out  to  him  various improvements carried out to the building.   Mr Erceg maintains that these would increase the value by at least $400,000.  Given that the original valuation was carried out in July it is likely that any new valuation, even with these improvements, would be at a lesser figure.

[3]      I have also not seen any substantive legal argument to date from Mr Ponniah to link that with the other breach which is clear, unambiguous and not denied.  I also make the comment that if this matter was so desperately important to Mr Erceg it is a little  strange  that  there  was  not  a  requirement  to  include  it  in  clause 7  of  the amending deed.  That, of course, goes to weight and I should not take it any further than make that comment, that it is a little strange.

[4]      Yesterday Williams J effectively made a 24-hour interim injunction order preventing the putting up of signage and such like for sale of this premises.  I intend to extend that but only on condition that the sum of $75,000 is electronically lodged in the defendant’s solicitors’ trust account by 3:00 pm today.  If it is, the injunction of Williams J is extended to the list next Wednesday, 29 October 2008 at 10:00 am.

[5]      This   matter   is   formally   adjourned   to   the   list   next    Wednesday,

29 October 2008  at  10:00 am.    The  defendant  is  to  file  and  serve  notices  and affidavits in opposition by that date and time.

[6]      I   am   told   that   Mr Erceg   has   chosen   to   go   overseas   on   business notwithstanding the pressing nature of these proceedings.   He will have to make alternative arrangements for someone to show the valuer around the building.  The valuer is to make himself available between now and next Wednesday to attend at

the premises to view the alleged improvements, and to provide an updated valuation as at today’s date taking into account the improvements and any market movements, of course, since July.

[7]      The costs of today will be on a 2B basis.  They will be costs in the cause at this stage.

……………………….

John Hansen J