Groom v Bartulovic - [2021] NZHC 2341

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-117

[2021] NZHC 2341

BETWEEN
PAUL MATE GROOM

Plaintiff

AND

DENNIS JOHN BARTULOVIC

Defendant

Hearing: 4 August 2021

Appearances:

Wendy Andrews for the Plaintiff Sheila McCabe for the Defendant

Judgment:

8 September 2021

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 8 September 2021 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

………………………….
Registrar/Deputy Registrar

Solicitors:
Vodanovich Law (Ivan Vodanovich) Auckland, for the Plaintiff Burton Partners (Nick Wilson), Auckland, for the Defendant

Counsel:
Wendy Andrews, Auckland, for the Plaintiff Sheila McCabe, Auckland, for the Defendant

GROOM v BARTULOVIC [2021] NZHC 2341 [8 September 2021]

[1] The late Winnie Helen Groom and her brother, Dennis John Bartulovic, the defendant, were partners in a firm, the Bartulovic Groom Partnership, that owned commercial premises in Ellerslie with three shops. The premises had earlier belonged to their father. As children they had worked there when it was a fish and chip shop. Winnie died on 17 August 2019. The plaintiff, Paul Groom, is her son and executor of her estate.1 After his sister’s death Mr Bartulovic gave notice of termination of the partnership to Mr Groom and notice that he would buy out the estate’s interest in the partnership. They did not agree on the price. Under the deed the price was then to be decided by the partnership accountant, Mr Blyth. He has determined that the price payable by Mr Bartulovic to the estate is $1,257,104.14 plus GST (if applicable). Mr Groom sues for that sum and has applied for summary judgment.

[2] Mr Bartulovic, who now lives in Perth, Western Australia but regularly comes back to New Zealand, says that Mr Blyth’s valuation is fundamentally flawed. He also says that Mr Groom involved himself in the business after the termination of the partnership and that counts against his claim.

[3] Mr Groom has proved to the summary judgment standard that Mr Bartulovic is bound by Mr Blyth’s determination. While Mr Groom did involve himself in the business after termination when he should not have, he has shown that Mr Bartulovic did not suffer any loss as a result. That clears away most of the obstacles to completing the purchase, but not all. There is one minor matter that needs tidying up, interest. The case will be called in a chambers list for further orders.

Preliminary matters

[4] On 21 April 2020 the Partnership Law Act 2019 came into force, replacing the Partnership Act 1908. References in the partnership deed to the 1908 Act are now to be read as referring to the 2019 Act.2 That aside, neither side suggested that the change of legislation affected this case.

1 Probate was granted on 31 October 2019.
2 Partnership Law Act 2019, sch 1, pt 1, cl 2(1).

[5] In another cause of action, Mr Groom says that the partnership dissolved on his mother’s death and seeks…

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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Details

Case: [2021] NZHC 2341
Decision Date: 8 September 2021

CaseChat Overview and Summary

In the High Court of New Zealand, Paul Groom, as executor of his mother's estate, sued Dennis John Bartulovic for the amount of a determination by Don Blyth, the partnership accountant, as to the net value of the partnership assets. The partnership had been dissolved by notice of termination from Bartulovic, who had elected to purchase the estate's share in the partnership. The estate had not agreed on the price. The partnership deed required that the price be determined by the partnership accountant if the partners could not agree. Groom applied for summary judgment against Bartulovic for the amount of the determination plus interest and costs. Bartulovic opposed on the ground that the determination was flawed and Groom had involved himself in the business after termination. The court held that Groom had proved to the summary judgment standard that Bartulovic was bound by the determination. While Groom had involved himself in the business after termination when he should not have, he had shown that Bartulovic did not suffer any loss as a result. That cleared away most of the obstacles to completing the purchase, but not all. There was one minor matter that needed tidying up, interest. The case would be called in a chambers list for further orders.

Orders