Klavenes v Greer - [2019] NZCA 278

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA639/2018
[2019] NZCA 278

BETWEEN	KNUT KLAVENES AND MELENAU KLAVENES First and Second Applicants KNUT JOHN KLAVENES Third Applicant
AND	SCOTT WILLIAM GREER Respondent

Court:	French and Clifford JJ
Counsel:	J A van der Zanden for Applicants Respondent in person
Judgment: (On the papers)	4 July 2019 at 9.30 am

JUDGMENT OF THE COURT

AThe application for an extension of time to appeal is granted.
BThe appeal must be brought within 10 working days of the date of delivery of this judgment.
CThere is no order as to costs.

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REASONS OF THE COURT

(Given by Clifford J)

Introduction

This is an application pursuant to r 29A of the Court of Appeal (Civil) Rules 2005 (the Rules) for an extension of time in which to commence an appeal against a judgment given by Palmer J on 22 June 2018 in the High Court at Auckland.[1]

Background

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

In his judgment, Palmer J granted the respondent, Scott William Greer, orders under s 298 of the Companies Act 1993 against the applicants, Knut Klavenes and Melenau Klavenes (Mr and Mrs Klavenes), and their son Knut John Klavenes (Mr Klavenes Jr). Mr Greer sought those orders, and appeared before Palmer J, as liquidator of the Klavenes’ family company, Klavenes Construction Ltd (KC NZ).
Mr Klavenes was a director and shareholder of KC NZ. Section 298 provides for the liquidator of a company to recover from directors and their relatives any amount by which the value such a person gave for property they acquired from the company in the three years before its liquidation was less than the value of the property.[2] Against Mr and Mrs Klavenes, Palmer J ordered payment of $128,124.99 of the claimed $803,517.28; against Mr Klavenes Jr, the claimed $16,030.26.[3] The Judge accepted those were the net amounts received by the Klavenes as a result of the intermingling of KC NZ company and their personal affairs. The Judge also made an order for costs in favour of Mr Greer against Mr and Mrs Klavenes and Mr Klavenes Jr on a 2B basis, plus disbursements.[4]
[2]The term “property” is defined extensively in s 2 of the Companies Act 1993 to mean “property of every kind whether tangible or intangible, real or personal, corporeal or incorporeal, and [including] rights, interests, and claims of every kind in relation to property however they arise”.
[3]Greer v Klavenes, above n 1, at [40].
[4]At [39].
The Klavenes were entitled to appeal that decision as of right. They had 20 working days within which to do so.[5] Given that Palmer J gave judgment on 22 June 2018, that period expired on 20 July 2018.
[5]Court of Appeal (Civil) Rules 2005, r 29.
On 13 July 2018, and hence within time, a notice of appeal was received by this Court under cover of an email from the Klavenes’ counsel, Mr van der Zanden, which…

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 [2019] NZCA 278
Case: [2019] NZCA 278
Decision Date: 4 July 2019 at 9.30 am

CaseChat Overview and Summary

The case of Klavenes v Greer was heard in the Court of Appeal of New Zealand. Knut Klavenes, Melenau Klavenes, and their son, Knut John Klavenes, sought an extension of time to appeal a judgment of Palmer J, which ordered them to repay money to the liquidator of their family company, Klavenes Construction Ltd, as a result of intermingling of company and personal funds. Scott William Greer opposed the application.

The central issue before the Court was whether the applicants were entitled to an extension of time to appeal the judgment of Palmer J. The Court considered the factors relevant to determining the exercise of its discretion under rule 29A of the Court of Appeal (Civil) Rules 2005, which included the length of the delay, reasons for the delay, the conduct of the parties, any prejudice or hardship to the respondent or others with a legitimate interest in the outcome, and the significance of the issues raised by the proposed appeal.

The Court found that the three-month delay in filing the application was not particularly well-explained, but the Klavenes' involvement in enforcement proceedings initiated by Greer may have contributed to the delay. The Court also noted that the merits of the proposed appeal, particularly on the costs appeal, seemed to have some relevance. The Court ultimately decided that it would be in the interests of justice to grant the Klavenes an extension of time to appeal.

The Court granted the application for an extension of time to appeal and ordered that the appeal must be brought within 10 working days of the date of delivery of the judgment. There was no order as to costs.

Orders