Sain v Erceg - [2022] NZHC 1010

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1350

[2022] NZHC 1010

BETWEEN
VINKA PATRICIA SAIN

Plaintiff

AND

IVAN VLADIMIR JOSEPH ERCEG

First Defendant

AND

MILLIE ERCEG TRUSTEE LIMITED

Second Defendant

Hearing: 4 May 2022

Appearances:

V Bruton QC and P A Brown for Defendants

C Martin for Non-Parties, Lynette Therese Erceg and Darryl Edward Gregory
J E M Lethbridge for Covisory Trust (Erceg) Ltd

Judgment:

12 May 2022

JUDGMENT OF ASSOCIATE JUDGE PAULSEN

This judgment was delivered by me on 12 May 2022 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

SAIN v ERCEG [2022] NZHC 1010 [12 May 2022]

[1] This judgment concerns a defendants’ application for non-party discovery. It arises in the context of a claim by Vinka Sain against Ivan Erceg and Millie Erceg Trustee Ltd concerning a property at 17 Withiel Drive, Epsom, Auckland.

[2] The claim was previously the subject of an unsuccessful application by the defendants for summary judgment or strike out. In a judgment of 14 April 2021, Associate Judge Bell summarised the dispute in the following terms, which I adopt:1
Vinka Sain says that she is the beneficial owner of the residential property at 17 Withiel Drive, Epsom, Auckland. Her late brother, Michael Erceg, paid for the property in 2004 but title was taken in the name of their mother, Millie Erceg. Although nothing was written down, Vinka says that Millie had only a life interest in the property, with the remainder to go to her. She sues as beneficiary of that trust. Millie has now died, but while she was alive, she transferred Withiel Drive to the trustees of the Millie Erceg No 1 Trust, herself and Millie Erceg Trustee Ltd. Ivan Erceg, the first defendant, is the executor of Millie’s estate. Millie Erceg Trustee Ltd, the second defendant, is the remaining trustee of the Millie Erceg No 1 Trust.

[3] The firm Jackson Russell acted on the purchase of the Withiel Drive property. There is an issue raised on this application whether Jackson Russell was acting for Michael Erceg or Millie Erceg. Michael Erceg passed away in November 2005, and Lynette Erceg and Darryl Gregory are the executors of his estate.

[4]The orders sought are not conventional and are as follows:

(a)That within seven days of the making of these orders Lynette Therese Erceg and Darryl Edward Gregory, as executor and trustees of the estate of the late Michael Anthony Erceg:

iDepose, by way of verified affidavit, whether or not the Jackson Russell file and time records relating to the purchase of the property at 17 Withiel Drive, Epsom in 2004 still exists;

iiIf the file and time records still exist, that they provide the original file and time records to the defendants, or if the originals have been destroyed, they provide copies, together with a verified affidavit confirming that they have provided all the documents on the file.

(b)Ivan Erceg 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 Sain v Erceg

Details

AGLC: Sain v Erceg [2022] NZHC 1010
Case: [2022] NZHC 1010
Decision Date: 12 May 2022

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Sain v Erceg revolves around a property dispute involving Vinka Sain, Ivan Erceg, and Millie Erceg Trustee Ltd. Vinka claims to be the beneficial owner of a residential property in Epsom, Auckland, purchased by her late brother, Michael Erceg, in 2004 under their mother Millie Erceg's name. The defendants sought non-party discovery from the executors of Michael Erceg's estate, Lynette Therese Erceg and Darryl Edward Gregory, concerning the Jackson Russell legal file and time records from the property's purchase. The defendants argued that Jackson Russell acted for Millie Erceg on the purchase, while the non-parties maintained the firm acted for Michael Erceg.

The legal issues the court had to decide included whether non-party discovery was necessary and if the orders sought were appropriate. The court found that while the Jackson Russell file might contain relevant material, the defendants' affidavit did not demonstrate the necessity of the orders. Moreover, the orders sought were irregular and not contemplated under the High Court Rules. The court also held that there were no special circumstances to permit the use of discovered documents in other proceedings.

The court declined to make the orders sought but made alternative orders for non-party discovery, requiring the non-parties to file an affidavit regarding the Jackson Russell documents and make them available for inspection to the parties. The non-parties were entitled to their actual and reasonable costs and disbursements in relation to the application and complying with the orders.

Orders