Klavenes v Greer - [2020] NZCA 215

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA639/2018
[2020] NZCA 215

BETWEEN	KNUT KLAVENES AND MELENAU KLAVENES First Appellants KNUT JOHN KLAVENES Second Appellant
AND	SCOTT WILLIAM GREER Respondent

Court:	French and Gilbert JJ
Counsel:	J A van der Zanden for Appellants P J Dale QC for Respondent
Judgment: (On the papers)	4 June 2020 at 4 pm

JUDGMENT OF THE COURT

AThe appellants’ application to adduce further evidence in support of the appeal is declined.
BThe respondent’s application for an extension of time to cross-appeal is granted.
CThe appellants are to pay costs to the respondent for a standard application on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Gilbert J)

Introduction

There are two applications before us for determination on the papers. The first is an application for leave to adduce further evidence in support of the appeal. The second is an application by the respondent for an extension of time to cross‑appeal.
The respondent, Scott Greer, is the liquidator of Klavenes Construction Ltd (KCL) which was incorporated in July 2011 and operated as a construction labour hire business in Auckland. Knut Klavenes is the sole director and shareholder of KCL. A separate entity, Klavenes Construction (Tonga) Ltd (KCL Tonga) was incorporated in Tonga and operated as a construction business there. Mr Klavenes and his wife, Melenau Klavenes, are the directors of KCL Tonga. Mrs Klavenes is its sole shareholder. The second appellant, Knut Klavenes Jr., is their adult son.
Mr Greer brought proceedings in the High Court at Auckland against the Klavenes’ for recovery pursuant to s 298 of the Companies Act 1993 of monies paid to them by KCL for which no consideration was given. In a judgment delivered on 22 June 2018, Palmer J found Mr and Mrs Klavenes liable to repay KCL the sum of $128,124.99 plus interest and costs.[1] This compared with a net amount claimed of $803,517.28. The Judge rejected the claim to the balance, finding that these monies were dispositions by KCL to and on behalf of KCL Tonga, not to the Klavenes’.[2] The Judge also entered judgment against Mr Klavenes Jr. for the amount claimed against him of $16,030.26.[3]

Application to adduce further evidence

[1]Greer v Klavenes [2018] NZHC 1504.

[2]At [27]–[31].

[3]At [40].

Rule 45 of the Court of Appeal (Civil) Rules 2005 gives the Court the power to grant leave for the admission of further evidence on questions of fact. The principles to be applied are well-settled. Updating evidence since the judgment in the court below is often received. However, stricter rules apply to evidence not falling into that category. In such cases, the court must not only balance the interests of the person seeking to adduce the evidence against the interests of the other party, it must also take account of the important public interest in finality of litigation. An applicant will usually need to establish that the evidence is fresh in…

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 Klavenes v Greer

Details

AGLC: Klavenes v Greer [2020] NZCA 215
Case: [2020] NZCA 215
Decision Date: 4 June 2020 at 4 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of Klavenes v Greer involved two appellants, Knut Klavenes and Melenau Klavenes, and one respondent, Scott Greer. The case concerned recovery of monies paid by Klavenes Construction Ltd (KCL) to the appellants for which no consideration was given. The legal dispute was whether the appellants were liable to repay the company and, if so, the amount owed. The Court of Appeal considered two applications: the appellants' application to adduce further evidence in support of the appeal and the respondent's application for an extension of time to cross-appeal.

The Court of Appeal found that the evidence sought to be adduced was not fresh as it could have been obtained with reasonable diligence. The evidence was also questionable in terms of credibility and cogency. The appellants' application to adduce further evidence was declined as it would cause prejudice to the respondent and was contrary to the public interest in finality of litigation. The Court of Appeal granted the respondent's application for an extension of time to cross-appeal as the delay was not inordinate and there was no disqualifying conduct on the part of the liquidator.

The Court of Appeal declined the appellants' application to adduce further evidence in support of the appeal and granted the respondent's application for an extension of time to cross-appeal. The appellants were ordered to pay costs to the respondent for a standard application on a band A basis and usual disbursements.

Orders