Krzanic v Sullivan - [2015] NZHC 2974

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-005275 [2015] NZHC 2974

BETWEEN
MARINA ZELKA KRZANIC

First Plaintiff

AND

DRAGI PETER KRZANIC AND LUTKA KRZANIC AND MARINA ZELKA KRZANIC Second Plaintiffs

AND

TIMOTHY PETER SULLIVAN Defendant

Hearing: 18 November 2015 (via audiovisual conference)

Appearances:

H N McIntosh for the Plaintiffs
No appearance for the Defendant

Judgment:

26 November 2015

JUDGMENT OF NATION J

Introduction

[1] On 6 August 2015, the first plaintiff obtained judgment against her former partner in respect of undisputed loans together with interest and costs. The second plaintiffs obtained judgment for $200,000 in respect of another undisputed loan together with interest and costs. At the same time, I stayed those judgments until the further order of the Court on terms. Those terms essentially required Mr Sullivan to diligently and efficiently prosecute in the Family Court applications he said he intended to make under the Property (Relationships) Act 1976.

[2] After Mr Sullivan had failed to meet the terms of the stay with regard to the prosecution of relationship property applications, on 16 September 2015 the
plaintiffs filed an interlocutory application for an order lifting the stay supported by

KRZANIC v SULLIVAN [2015] NZHC 2974 [26 November 2015]

an affidavit. That application was initially dealt with in a telephone conference on

20 October 2015 but was adjourned for hearing on 18 November 2015 at 2.15 pm. The hearing was to proceed by way of an audiovisual link with Mr Sullivan or his counsel and counsel for the plaintiffs to attend at the High Court at Auckland with my sitting in Christchurch. As it transpired, the audiovisual link took place with my sitting in the High Court in Dunedin.

[3] Mr McIntosh appeared as counsel for the plaintiffs. There was no appearance by Mr Sullivan or by counsel on his behalf. The hearing proceeded in his absence. This judgment follows on from that hearing.

Request for adjournment

[4] By a memorandum of 16 November 2015, Mr Sullivan personally, through a

16 paragraph typed memorandum, sought an adjournment of the hearing advising the Court that he assumed the matter had been adjourned until a time when he would be “well enough to participate”. With the memorandum was a letter from a Dr Gerald Young. That letter referred to the injuries Mr Sullivan had suffered in a serious motorcycle accident on 14 October 2015 and the fact that he was “on strong analgesia” while fractures were healing. The doctor said:

As a result of these injuries and a strong analgesia, he is not able to attend to the preparation for the hearing scheduled for 27 November 2015.

He is unlikely to be medically fit to attend any hearing for a minimum of two months.

[5] In his memorandum, Mr Sullivan said that, other than receiving an email from the case manager in the High Court at Auckland, Ms Wong, he “had no advice from the Court of a hearing date, a hearing notice or reminder”. He made statements as to…

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 Krzanic v Sullivan

Details

AGLC: Krzanic v Sullivan [2015] NZHC 2974
Case: [2015] NZHC 2974
Decision Date: 26 November 2015

CaseChat Overview and Summary

The case of Krzanic v Sullivan involves the plaintiffs, Marina Zelka Krzanic, Dragi Peter Krzanic, and Lutka Krzanic, seeking to enforce judgments against the defendant, Timothy Peter Sullivan, in respect of undisputed loans, interest, and costs. The High Court had previously stayed these judgments until further order, requiring Sullivan to prosecute relationship property applications in the Family Court. The plaintiffs sought to lift the stay due to Sullivan's failure to comply with the stay terms.

The primary legal issue before the court was whether the stay should be lifted, considering Sullivan's injuries from a motorcycle accident and his failure to prosecute relationship property claims as required. The court needed to balance the plaintiffs' need for certainty and enforcement of their judgments against Sullivan's health situation and potential claims.

The court found that despite Sullivan's injuries, he was aware of the hearing and had the capacity to either appear or arrange for representation. Sullivan had previously assured the court of his intent to pursue relationship property claims efficiently, but failed to comply with Family Court directions, leading to the striking out of his application. The court concluded that Sullivan's previous assurances could not be taken at face value and that he seemed more interested in delaying payment to the plaintiffs rather than genuinely pursuing relationship property claims. Therefore, the stay was varied to continue until February 28, 2016, after which the plaintiffs could enforce their judgments. The plaintiffs were awarded costs on an interim basis.

In summary, the court lifted the stay with conditions, allowing the plaintiffs to enforce their judgments while taking into account Sullivan's injuries, but found that his failure to pursue relationship property claims as promised undermined his position.

Orders