Huljich v Huljich - [2018] NZHC 836

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-002631 [2018] NZHC 836

BETWEEN
ELIZABETH HULJICH

Plaintiff

AND

CHRISTOPHER PETER HULJICH

First Defendant

AND

PETER KARL CHRISTOPHER HULJICH

Second Defendant

AND

MICHAEL STEPHEN HULJICH

Third Defendant

Hearing: 22 March 2018

Appearances:

J Katz QC and O Woodroffe for the Plaintiff (given leave to withdraw)

D H McLellan QC and J S Cooper QC for the Defendants

Judgment:

27 April 2018

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] There are two applications before the Court. First, the defendants apply to strike out certain paragraphs of the plaintiff’s amended statement of claim dated 1 December 2017 (the fifth claim), including two newly-added causes of action which had not been previously pleaded. The defendants contend that the newly-added paragraphs should be struck out because they contain no arguable case, they are irrelevant or an abuse of process, or they are statute-barred.

[2] If and to the extent the plaintiff’s new claims are not struck out, the defendants ask that the bulk of them be reserved to be dealt with at a separate hearing, after the

HULJICH v HULJICH [2018] NZHC 836 [27 April 2018]

trial of the main proceeding which is presently scheduled to start on 9 July 2018. The defendants also ask that any discovery relating to the new claims be deferred until after the July trial.

[3] The final aspect of the defendants’ application is an application for further and better particulars of the fifth claim.

[4] The second application before the Court is an application for particular discovery filed by the plaintiff, relating to the new allegations made in the fifth claim. It is opposed by the defendants.

The parties

[5] The plaintiff (Mrs Huljich) is an elderly lady. She is the owner of a number of townhouses situated at 42 and 44 Tarawera Terrace, St Heliers.

[6] The first defendant (Chris) and the third defendant (Michael) are two of her sons, and the second defendant (Peter) is her grandson (the son of the first defendant).

[7] Chris is an accountant and businessman, who was at material times the managing partner of a business partnership and related entities, including the Huljich Brothers Partnership. Peter is a sharebroker, who is also a member of the Huljich Brothers Partnership. Mrs Huljich says that Peter was in control of the share dealings of the partnership and its related entities.

[8]Michael is also a businessman, and is the business partner of Chris and Peter.

Mrs Huljich did not appear at the hearing

[9] Mr Katz QC was retained as senior counsel for Mrs Huljich in December 2017, after the fifth claim was filed. He formed the view that the fifth claim would need to be further amended, and that the interlocutory applications described above would not be ready to proceed as scheduled on 22 March 2018. He applied by memorandum for an adjournment of both the 22 March hearing and the trial of the substantive proceeding.

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 Huljich v Huljich

Details

AGLC: Huljich v Huljich [2018] NZHC 836
Case: [2018] NZHC 836
Decision Date: 27 April 2018

CaseChat Overview and Summary

Elizabeth Huljich commenced a proceeding against her three sons, Christopher Peter Huljich, Peter Karl Christopher Huljich, and Michael Stephen Huljich, in relation to a loan that she made to Christopher and Peter in 2009. The sons seek to strike out certain allegations made by Mrs Huljich in her fifth amended statement of claim, and to defer consideration of those allegations until after the trial of the main proceeding. The sons also seek further and better particulars of certain allegations in the fifth claim. Mrs Huljich filed an application for particular discovery. The issues for determination are whether certain paragraphs in the fifth claim should be struck out, whether any parts of the fifth claim that are not struck out should be deferred for a later trial, and whether Mrs Huljich should be ordered to provide further particulars of the fifth claim. The Court concluded that some paragraphs in the fifth claim should be struck out, but others should not. The Court refused to defer consideration of the parts of the fifth claim that are not struck out. The Court ordered Mrs Huljich to provide further particulars of the fifth claim. The Court refused Mrs Huljich’s application for particular discovery.

Orders