Krzanic v Sullivan - [2014] NZHC 1375

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2013-404-005275 [2014] NZHC 1375

BETWEEN
MARINA ZELKA KRZANIC

First Plaintiff/Respondent

DRAGI PETER KRZANIC, LUTKA KRZANIC and MARINA ZELKA KRZANIC

Second Plaintiffs/Respondents

AND

TIMOTHY PETER SULLIVAN Defendant/Applicant

Hearing: 16 May 2014

Appearances:

D M Hughes for the Applicant
H McIntosh for the Respondent

Judgment:

18 May 2014

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on
18.06.14 at 4:30pm, pursuant to
Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date……………

M Z KRZANIC v D P KRZANIC, L KRZANIC and M Z KRZANIC v T P SULLIVAN [2014] NZHC 1375 [18
May 2014]

Background to High Court proceeding

[1] The first plaintiff (Ms Krzanic) and the second plaintiffs (the DLM Family

Trust) have filed this proceeding to recover amounts totalling $640,000 and

$200,000 respectively that they say were loaned to the defendant (Mr Sullivan). Ms Krzanic says her loan comprised two amounts advanced to Mr Sullivan in May and June 2005. The DLM Family Trust says its amount was loaned in two instalments to Mr Sullivan in September and November 2008. The loans were required to be repaid on demand and demand has been made for repayment.

Strike out application

[2] Mr Sullivan has filed to strike out these claims. His grounds are:

(a) The claim is an attempt to relitigate issues previously determined by

Courts of competent jurisdiction.

(b)Issue estoppel prevents re-litigation of issues concerning the sums sought because those were the subject of a Family Court proceeding which has been struck out.

(c) Res judicata prevents relitigation on the entire statement of claim and in particular prevents the plaintiffs arguing or seeking orders regarding relationship property when prior claims in respect of those have been struck out by the District Court.

(d)The preceding is frivolous and vexatious and is otherwise an abuse of process of the Court.

(e) The plaintiffs have acted frivolously and improperly in commencing the proceeding.

[3] In support of his application Mr Sullivan has filed an affidavit. He deposes:

[2] These proceedings mirror those brought in the Family Court under
FAM-2011-044-001021…

[3] The proceeding was struck out for want of prosecution.

[4] In any event, the plaintiff and I agreed that neither would pursue the other with respect to the claims we each alleged we had against the other.

…

[4] For consideration of the Court upon the strike out application Mr Hughes, counsel for Mr Sullivan, has filed a bundle of documents. It includes:

(a) Under the reference FAM-2011-044-001021 a copy of a minute of

Burns DCJ dated 29 August 2012, noting:

- Application struck out.

- File closed.

(b) Under FAM-2011-044-001021, a minute of Judge J H Walker noting:

- Matters were before me on 2 November 2011 where I made some directions in respect to filing of documentation relating to the hearing, noting there was a family trust involved.

- Mr Webster [Ms Krzanic’s lawyer] advises that he has had no recent instructions from his client. He has…

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 [2014] NZHC 1375
Case: [2014] NZHC 1375
Decision Date: 18 May 2014

CaseChat Overview and Summary

The High Court of New Zealand was presented with an application to strike out a proceeding filed by Marina Zelka Krzanic, Dragi Peter Krzanic, Lutka Krzanic, and the DLM Family Trust against Timothy Peter Sullivan. The plaintiffs sought to recover amounts totalling $640,000 and $200,000 respectively, which they claimed were loans made to Sullivan. Sullivan argued that the claims were an attempt to relitigate issues previously determined by the Family Court and that res judicata and issue estoppel should prevent the claims from proceeding. Sullivan also claimed that the proceeding was frivolous and vexatious, and an abuse of process.

The court had to decide whether the claims were barred by res judicata and issue estoppel, and whether the proceeding was vexatious or an abuse of process. The court found that the Family Court proceeding had been struck out for want of prosecution, not because the issues had been determined. The court concluded that there was no determination of the claims submitted to the Family Court, and therefore no basis for applying res judicata or issue estoppel. The court also found that the proceeding was not vexatious or an abuse of process because the claims were different in each court.

The strike out application was dismissed, and costs were awarded to the plaintiffs. Sullivan was ordered to pay the plaintiffs' costs on a 2B basis, together with disbursements.

Orders