Klimenko v Klimenko - [2025] NZHC 271

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2362

[2025] NZHC 271

BETWEEN
ANDREI KLIMENKO

Plaintiff/Respondent

AND

ANTON KLIMENKO

and
ANNA GONCHARENKO

Defendants/Applicants

Hearing: 16 December 2024

Appearances:

Penelope Stevenson/Serge Roud for the Plaintiff/Respondent Defendants/Applicants are self-represented

Judgment:

25 February 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Defendants’ application to lapse caveats]

This judgment was delivered by me on 25 February 2025 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules

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

Solicitors:
Loughlin McGuire (S Roud), Auckland, for the Plaintiff/Respondent

Copy for:
Penelope Stevenson, Barrister, Foundry Chambers, Auckland, for the Plaintiff/Respondent Anton Klimenko and Anna Goncharenko, Auckland, Defendants/Applicants

KLIMENKO v KLIMENKO [2025] NZHC 271 [25 February 2025]

TABLE OF CONTENTS

Paragraph

Introduction [1]

Background [2]

Defendants’ application that the caveat should lapse [3]

Caveated properties [4]

Legal principles [6]

Anton and Anna’s submissions [12]

The defendants say [13]

Financial hardship [13]

No reasonably arguable case of entitlement to or
beneficial interest in the caveated properties  [16]
No valid grounds for lodging the caveats  [21]
Disputed questions of fact  [23]
Separation  [27]

Andrei’s opposition [32]

Analysis [33]

Hardship [35]

Result [39]

Exercise of residual discretion [40]

Orders [46]

Introduction

[1] Anton Klimenko (Anton) and Anna Goncharenko (Anna) (together, the defendants) apply for orders that caveat 12110027.1 and caveat 12110510.1 (the caveats) lodged by Andrei Klimenko (Andrei)1 against six properties (Caveated Properties) registered in their names are removed.

Background

[2] The background to the substantive proceeding is set out in Associate Judge Brittain’s judgment of 27 November 2023:2

[1] The plaintiff, Andrei Klimenko, is the father of the first named defendant, Anton Klimenko. The second named defendant, Anna Goncharenko, is Anton’s de facto partner.

[2] Andrei lives in Russia. Anton and Anna live in New Zealand. In 2010, a bank account was opened in New Zealand in the joint names of Andrei and Anton. Between April 2011 and October 2018, Andrei deposited a total of NZD 1,370,713 into the account. Anton had control of the account. He used the funds, at least in part, to purchase residential property in New Zealand, tools and building materials, and a Landcruiser vehicle.

[3] Andrei says that, by agreement, Anton was to use the funds in the account to purchase residential properties in New Zealand for Andrei’s benefit. Anton says that the funds were an unconditional gift to him, and he was free to use the funds for his own benefit as he saw fit.

[4] The first property purchased by Anton was 1 Aberley Road in Albany. It is agreed that funds from the account were used to purchase that property. Since then, Anton, either alone or together with Anna, and sometimes using other entities, has been involved in the sale and purchase of 12 residential properties.

[5] Andrei claims against Anton alleging a resulting or constructive trust. Andrei seeks to trace his funds through the property transactions involving…

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 Klimenko v Klimenko

Details

AGLC: Klimenko v Klimenko [2025] NZHC 271
Case: [2025] NZHC 271
Decision Date: 25 February 2025

CaseChat Overview and Summary

The defendants Anton Klimenko and Anna Goncharenko applied for orders that the caveats lodged by Andrei Klimenko against six properties registered in their names be removed. The caveats were registered on the basis of a claimed beneficial interest in the properties by virtue of a constructive trust. The defendants argued that they were suffering financial hardship due to the inability to generate sufficient rental income from the caveated properties and ongoing expenses related to maintaining them. The court noted that the defendants had not provided complete financial information and that the hardship they claimed was not sufficient to warrant the removal of the caveats. The court held that the defendants' application for removal of the caveats was dismissed. However, if the parties wished to pursue an arrangement substantially as set out in the judgment, they were invited to make further submissions to the court. Costs were reserved pending further submissions from the parties. If the parties did not pursue an arrangement substantially in the form set out in the judgment, costs should follow the event.

Orders