Eyheremendy v Dukoski HC Auckland CIV 2010-404-006026

[2011] NZHC 356

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-006026

BETWEEN  ROBERTO EYHEREMENDY Plaintiff

ANDMARIA INES CARLOS DUKOSKI AND CARLOS OMAR MIRANDA

Defendants

Hearing:         11 February 2011

Counsel:         S Eden for plaintiff

D Smyth for defendant

Judgment:      11 February 2011

ORAL JUDGMENT OF ASSOCIATE JUDGE ABBOTT

Solicitors:

Shieff Angland, PO Box 2180, Auckland for plaintiff
Graeme Atmore, PO Box 147483, Auckland for defendants

Counsel:

David Smyth, Barrister, PO Box 105 270, Auckland

EYHEREMENDY V DUKOSKI & ANOR HC AK CIV 2010-404-006026 11 February 2011

[1]      This is an application by the plaintiff for summary judgment on four causes of action arising out of dealings between the parties in 2004.

[2]      The parties have known one another for approximately 20 years, from a time when all were living in Argentina.  The defendants came to New Zealand in 2002. In  2004  the  plaintiff  decided  to  undertaken  some  property  investment  in  New Zealand.      He purchased two apartments and subsequently, jointly with the defendants, purchased a property at 37 Ngaio Road, Titirangi.   At about the same time, he says on the advice of the first-named defendant, he opened bank accounts in New  Zealand  (including  a  credit  card  account)  jointly  with  the  first-named defendant, into which he transferred funds for proposed investment.

[3]      It is common ground that the plaintiff advanced the defendants the funds they needed to complete the purchase of their 2/3 interest in Ngaio Road, until the defendants could sell properties they owned in Argentina.

[4]      The plaintiff contends that:

[a]      the defendants have failed to repay the whole of his advance to them, and that there is a balance of US$4,335.99 outstanding;

[b]      The defendants have breached an agreement to pay rental at the rate of $200 pw for his share of the Ngaio Road property from December

2004 onwards (currently totaling $62,600), which he says was part of a property sharing agreement made at the time of purchase;

[c]      the first-named defendant has made authorized withdrawals of his money from the bank accounts, and unauthorised use of the credit card account, and amounting $152,246.34; and

[d]      there should be an order for immediate sale of Ngaio Road so as to release his investment in that property.

[5]      The defendants oppose summary judgment on all claims.  They contend that they have repaid the whole of the advance and that there was no property sharing agreement or agreement to pay rent to the plaintiffs.  The first-named defendant also disputes that she withdrew the funds from the bank accounts without authority.  She contends that the plaintiff made her his attorney in respect of his other property investments and that the money was used either to pay expenses in connection with those properties, or to reimburse her for her time in undertaking this work on his behalf since 2004.   The defendants also say that Ngaio Road is now their family home and that they have undertaken significant improvements to it.  They wish to purchase the plaintiff’s share.  They say that the disputes of the alleged agreements are not capable of being determined properly in a summary application, and that those disputes need to be resolved to arrive at an appropriate figure to be paid to the plaintiff for the purchase of his interest.

[6]      At  the  commencement  of  the  hearing  I indicated  to  counsel  that  it  was apparent that there were significant areas of factual dispute, and that I had serious doubt that the matter was capable of resolution in a summary manner.   This is exemplified by the number of affidavits that have been filed, some being by way of reply to reply affidavits.  Ms Eden initially was of the view that the money claims, at least, were capable of resolution summarily, on the grounds that the defences put forward were not credible.  I was not convinced that the evidence was clear enough for me to dismiss the contrary factual contentions advanced by the defendants on those claims, but in any event I did not see that all claims were capable of being resolved by today’s hearing.

[7]      In light of that initial view, I invited counsel to confer and consider whether an agreed position could be reached on a consent order for determining the parties’ respective interests in the Ngaio Road property, and an early judicial settlement conference to resolve the other (money) claims.  At least the first two of these money claims will have to be resolved as part of any sale of the property.

[8]      After an adjournment which has allowed counsel time to confer and take further instructions, they have reached agreement on a process whereby the application for summary judgment is to be withdrawn, a consent order is to be made

for the defendants to purchase the plaintiff’s share in the property, discovery is to be undertaken and further valuation evidence obtained in respect of the money claims, and a judicial settlement conference is to be held as soon as that information has been obtained and time in the Court can be found.

[9]      Against that background, and by consent, I make the following orders:

[a]      The plaintiff’s application for summary judgment is withdrawn, with costs reserved;

[b]       There is an order pursuant to s 339 (1)(c) of the Property Law Act

2007 that the defendants purchase the plaintiff’s share in 37 Ngaio

Road, Titirangi at a fair and reasonable price;

[c]      There is a further order that the property be valued as at today’s date as a starting point for assessment of a fair and reasonable price as between the parties.

[10]     The above orders leave the following issues for determination:

[a]      Whether  the  parties  agreed  that  the  defendants  would  pay  the plaintiffs $200 per week from the beginning of August 2004 as an occupation rent for 37 Ngaio Road;

[b]      If there was no agreement for payment of an occupation rent, whether the plaintiff entitled to a fair occupation rent for the property and, if so, of what amount and for what period;

[c]      Whether there was an agreement that the first-named defendant would be paid fees for managing the plaintiff’s apartments and, if so, what was the basis on which those fees were to be charged, and to what fees is she entitled;

[d]      If there was no agreement that the plaintiff would pay the first-named defendant for managing the apartments, is the first-named defendant

entitled  to  compensation  from  the  plaintiff  for  time  spent  on managing the plaintiff’s affairs in respect of those apartments and, if so, on what basis is that compensation to be calculated, and what compensation and to what compensation is she entitled;

[e]      What amount of money in the jointly held bank accounts was used for the plaintiff’s benefit;

[f]      What sum of money (if any) is due to the plaintiff after allowing for payments made for the plaintiff’s benefit and for fees to which the defendant is entitled.

[11]     I make the following orders with respect to discovery:

[a]       The parties are to file and serve affidavits of documents by 10 March

2011;

[b]       All inspection and production of documents is to be completed by

31 March 2011;

[12]     The parties are each to commission a report by a valuer as to the present market value of 37 Ngaio Road.   Those reports are to be exchanged by 22 April

2011;

[13]     The Registrar is to allocate a judicial settlement conference (one day) at

10:00am on 27 May 2011.   Memoranda for that conference are to be filed and served in accordance with standard directions which will be issued with this judgment, but focusing on the issues for determination identified above.   As the parties have already filed affidavit evidence, will say statements will not be required, but counsel should include a brief summary of the relevant evidence of witnesses in their memoranda.  The plaintiffs memorandum is to be filed and served by 13 May

2011.  The defendants’ defendant is to be filed and served by 20 May 2011.

[14]     I reserve leave for either party to apply by memorandum for a telephone conference is any matters arise on which directions are required or would assist.  The

file is to be referred back to me on receipt of any such memoranda.

Associate Judge Abbott

DIRECTIONS FOR SETTLEMENT CONFERENCE:

CIV 2010-404-006026 – EYHEREMENDY v DUKOSKI & ANOR

These directions are issued for a judicial settlement conference in this proceeding of

one day’s duration at 10:00am on 27 May 2011].

Memoranda for conference

[1]       As a pre-condition to the conference proceeding:

[a]       The plaintiff shall file and serve a memorandum, as set out below, by

13 May 2011.

[b]       The defendants shall file and serve their    memorandum, as set out below, by 20 May 2011.

[15]     The memoranda shall set out (and properly answer) each of the questions below.

Questions

1         What are the issues in this litigation?

2Which one (or more) of these issues is most significantly affecting your inability to settle?

3         Why?

4         Have you and the other party engaged in settlement negotiations?

Please describe the nature of those negotiations.

5         What offers of settlement have been exchanged?

6Upon what criteria was your settlement offer based (if one was made) or on what do you rely to support your present position (e.g. case law, industry standards, experts’ report or findings, etc)?

7What else do you believe that the settlement conference Judge should know about this matter that would enable him or her to work more productively with all parties participating in the conference?

Further information for conference

[16]     In addition to their memoranda, the parties are to provide:

[a]      A one page “will-say” statement from each of your key witnesses other than expert witnesses ( ie.    “Witness A will say the following:........”.)  Full briefs need not be completed unless otherwise directed.

[b]      Any   experts’   reports   that   you   rely   upon   in   your   settlement negotiations or to substantiate your perspective.   Highlight and tab those portions that you consider the most probative.

[b]       Any other specific information

[17]     All “will say” statements and experts’ reports are to be bound into paginated

bundles.

[18]     Should any party fail to comply with the directions the parties can expect the conference to be cancelled and the defaulting party will be at risk of costs.

NB:     Settlement Conferences and papers filed in connection with them are treated as without prejudice and privileged save as to the recording of whether a settlement was reached or not.  Thus memoranda of the kind required above are not part of the record and (unless it be requested by any party and agreed by all otherwise) will be destroyed, returned to counsel/parties, removed from the file or sealed  up  (eg.  if  conference adjourned) at the conclusion  of the conference.