Klimenko v Klimenko - [2024] NZHC 3328

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-2362

[2024] NZHC 3328

BETWEEN
ANDREI KLIMENKO

Plaintiff

AND

ANTON KLIMENKO and ANNA GONCHARENKO

Defendants

Hearing: 24 July 2024 and 6 September 2024

Appearances:

PJ Stevenson for the Plaintiff

A Klimenko and A Goncharenko, Defendants in Person

Judgment:

8 November 2024

JUDGMENT OF ASSOCIATE JUDGE SUSSOCK

This judgment was delivered by me on 8 November 2024 at 4.45 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
P Stevenson, Barrister, Auckland

KLIMENKO v KLIMENKO [2024] NZHC 3328 [8 November 2024]

Introduction

[1] In this proceeding Andrei Klimenko brings a claim against his son and his son’s de facto partner at the time, Anton Klimenko and Anna Goncharenko, in respect of funds deposited by Andrei in an ASB bank account in New Zealand between 2011 and 2018.1

[2] Andrei lives in Russia and pleads that it was agreed that Anton was to use the funds in the ASB account to purchase residential properties in New Zealand for Andrei’s benefit. Anton denies the claim and says instead that the funds were an unconditional gift to him.

[3] In 2021 Jagose J made orders that caveats lodged by Andrei over six properties registered in Anton and Anna’s names were not to lapse on condition that Andrei bring proceedings promptly to determine his claims to a resulting or constructive trust and pursue them diligently.2

[4] Andrei filed these proceedings in 2021 but they have not progressed smoothly since then with the need for a security for costs hearing and multiple discovery applications by both sides and the delays associated with those. These delays eventually led to late adjustments to the close of pleadings date.

[5] Andrei’s claim was originally for either a resulting or constructive trust. However, on the close of pleadings date, Andrei filed an amended statement of claim adding four causes of action, two for breaches of duty against all defendants and the remaining two for knowing receipt and dishonest assistance against Anna.

[6] In addition, Andrei applied for joinder of Anton Klimenko and Anna Goncharenko in their capacity as trustees of the Triple A Family Trust (Trust) (attaching a draft second amended statement of claim) and for particular discovery against the defendants. The further discovery sought was extensive with the categories of documents including bank statements for nine bank accounts in the names of Anton and Anna, some since 2010, plus ten other categories of documents.

1 I refer to the parties by their first names to avoid confusion and intend no disrespect in doing so.
2 Klimenko v Klimenko [2021] NZHC 2592.

[7] Anton and Anna, who now represent themselves, filed a notice of opposition confirming that they oppose joinder and any further discovery on the basis that all relevant information had already been supplied to the plaintiff and that the defendants’ circumstances have changed significantly including that they are no longer in a position to afford…

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 [2024] NZHC 3328
Case: [2024] NZHC 3328
Decision Date: 8 November 2024

CaseChat Overview and Summary

The case of Klimenko v Klimenko, heard in the Auckland Registry of the High Court of New Zealand, involves a dispute between Andrei Klimenko, the plaintiff, and his son Anton Klimenko and Anton's de facto partner Anna Goncharenko, the defendants. Andrei claims that funds he deposited into an ASB bank account in New Zealand between 2011 and 2018 were to be used for the purchase of residential properties for his benefit. Anton and Anna deny this, asserting the funds were an unconditional gift to Anton. The court was required to decide whether leave should be granted for the plaintiff to join Anton and Anna as trustees of the Triple A Family Trust and for particular discovery, as well as whether these applications should be allowed. The court considered the interests of justice, potential prejudice to the defendants, and the avoidance of significant delay in granting leave. Given the adjournment of the trial and the necessity for Anton and Anna's presence to settle all questions in the proceeding, the court granted leave for joinder. However, the court declined to make orders for particular discovery at that stage, instead directing that the application be reconsidered following the filing of a statement of defence and completion of standard discovery. The court exercised its discretion not to award costs in respect of the applications, given the late timing and the potential for consent to have been obtained earlier.

Orders