Lendich v Codilla - [2022] NZHC 1655

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-000566

[2022] NZHC 1655

BETWEEN
DANILO STANISLAV LENDICH

First Plaintiff

LENDICH CONSTRUCTION LIMITED
Second Plaintiff

AND

ADRIAN CAMPANA CODILLA

Defendant

Hearing: 12 July 2022

Appearances:

P H Thorp for Plaintiffs

S Anthony for Defendant on behalf of N P Tetzlaff

Judgment:

13 July 2022

JUDGMENT OF VENNING J STAY APPLICATION

This judgment was delivered by me on 13 July 2022 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Davenports West Lawyers Ltd, Auckland
Connell & Connell, Auckland

Counsel: P H Thorp, Auckland

LENDICH v CODILLA [2022] NZHC 1655 [13 July 2022]

[1] The plaintiffs seek a declaration that a block of land containing a house (the caretaker’s property) is held by Mr Codilla for them, pursuant to a resulting trust.

[2] Mr Codilla has filed a statement of defence and counterclaim. In addition he has filed an application for summary judgment.

[3] The plaintiffs have responded with an application to stay primarily directed at the application for summary judgment.

[4] The issues between the parties have recently been considered by this Court on an application by the first plaintiff Mr Lendich, for an order sustaining the caveat lodged over the caretaker’s property.1

[5] Some time ago the caretaker’s property was transferred to Tihomir Posa, a long-term employee of Mr Lendich. Mr Posa has died. The defendant, Mr Codilla, is his executor. The plaintiffs in the present proceeding, Mr Lendich and Lendich Construction Limited (Lendich Construction) claim an interest in the caretaker’s property under a resulting trust. They say the caretaker’s property was transferred to Mr Posa to allow him to obtain a mortgage in respect of the property, but that it was never intended that he would have the right to sell or deal with the property as his own.

[6] Although the caveat was lodged in Mr Lendich’s name personally, the evidence filed in the caveat proceeding showed the caretaker’s property was transferred to Mr Posa by Lendich Heavy Equipment Ltd, the shares of which were owned by Mr Lendich and his wife. That company ceased trading in 1988 and was struck off the Companies Register in 1990.

[7] In a judgment delivered on 12 April 2022 Associate Judge Sussock determined that the caveat registered by Mr Lendich against the caretaker’s property was to lapse.

1 Lendich v Codilla [2022] NZHC 758.

[8] Associate Judge Sussock concluded that the resulting trust Mr Lendich claimed was not reasonably arguable. She considered it was patently clear the caveat could be not maintained on that basis.2

[9] The Judge went on to note, obiter, that even if the presumption of resulting trust was not rebutted by the evidence, Mr Lendich had not established it was reasonably arguable that he personally had an interest pursuant to a resulting trust.3 The caretaker’s property was transferred to Mr Posa by Lendich Heavy Equipment Ltd. Although it was…

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 Lendich v Codilla

Details

AGLC: Lendich v Codilla [2022] NZHC 1655
Case: [2022] NZHC 1655
Decision Date: 13 July 2022

CaseChat Overview and Summary

The plaintiffs, Danilo Stanislav Lendich and Lendich Construction Limited, sought a declaration that a block of land containing a house, referred to as the caretaker's property, was held by the defendant, Adrian Campana Codilla, for them pursuant to a resulting trust. The defendant filed a statement of defence and counterclaim, and also filed an application for summary judgment. The plaintiffs responded with an application to stay, primarily directed at the defendant's application for summary judgment. The primary issue was whether the proceedings should be stayed pending the hearing of the appeal from the decision of the Associate Judge regarding the caveat lodged over the caretaker's property. The court held that it would be a waste of resources for the application for summary judgment to proceed while the appeal was on foot, as the outcome of the appeal would likely be determinative of the plaintiffs' claim in the current proceedings. The court granted the stay on the condition that Mr Lendich and Lendich Construction Limited would discontinue the current proceedings if the appeal was determined against Mr Lendich. The court also granted the defendant's application to have the affidavits filed in the other proceedings read in this proceeding. Costs on the stay and hearing before the court were reserved.

The court made the following directions/orders: (a) the defendant's application for summary judgment was stayed on the condition that Mr Thorp filed a memorandum within five working days confirming that in the event of the appeal in the caveat proceedings being determined against Mr Lendich, Mr Lendich and Lendich Construction Limited would discontinue this proceeding; (b) the appeal before the Court of Appeal would be pursued expeditiously, and no adjournments of that appeal would be sought by the appellant; and (c) in the event the plaintiffs' claims were discontinued, the defendant would be entitled to pursue its counterclaim. Costs were reserved.

Orders