IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2020-404-1350
[2021] NZHC 761
UNDER
the Property Law Act 2007
BETWEEN
VINKA PATRICIA SAIN
Plaintiff
AND
IVAN VLADIMIR JOSEPH ERCEG
First Defendant
MILLIE ERCEG TRUSTEE LIMITED
Second Defendant
Hearing:
29 March 2021
Appearances:
David Bigio QC and Tiaan Nelson for the Plaintiff
Vanessa Bruton QC and Priscilla Brown for the Defendants
Judgment:
14 April 2021
JUDGMENT OF ASSOCIATE JUDGE R M BELL
This judgment was delivered by me on 14 April 2021 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
………………………….
Registrar/Deputy Registrar
Solicitors:
LawWorks (George Ireland), Auckland, for the Plaintiff Priscilla A Brown, Auckland, for the Defendants
Copy for;
David Bigio QC, Auckland, for the Plaintiff
Vanessa Bruton QC, Auckland, for the Defendants
SAIN v JOSEPH ERCEG [2021] NZHC 761 [14 April 2021]
[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.
[2] The defendants say that her claim cannot succeed and have applied for strike- out and summary judgment. Their grounds are that her claim is inherently improbable, the requirements for a trust are not met, her claim is barred by land transfer indefeasibility, and it is also time-barred or should be dismissed for laches. One difficulty for the defendants is that Downs J upheld Vinka’s caveat on the title.1
[3] There are certainly difficulties with Vinka’s case. It will be hard to prove, as is any case which turns on people remembering conversations which took place more than 15 years ago. But that is not enough to warrant dismissal. Although weak, her case is arguable.
Some background
[4] Mijo and Millie Erceg had four children – Michael, Ivan, Marijana and Vinka. Mijo died in 1983. The family’s background was in wine-making. Michael took it further and made a fortune in the liquor industry. He tragically died in a helicopter accident in November 2005. Ivan went into boat-building but was less successful. He went bankrupt. Marijana died of cancer in September 2004. Millie died in October 2019. Ivan is the executor of her will. He and Vinka are the only surviving children.
[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.
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Sain v Erceg [2021] NZHC 761
Case
[2021] NZHC 761
Decision Date
CaseChat Overview and Summary
Vinka Sain sues her brother Ivan Erceg and Millie Erceg Trustee Ltd to establish 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 is the executor of Millie’s estate. Millie Erceg Trustee Ltd is the remaining trustee of the Millie Erceg No 1 Trust. The defendants say that her claim cannot succeed and have applied for strike-out and summary judgment. Their grounds are that her claim is inherently improbable, the requirements for a trust are not met, her claim is barred by land transfer indefeasibility, and it is also time-barred or should be dismissed for laches. One difficulty for the defendants is that Downs J upheld Vinka’s caveat on the title. The defendants’ application was dismissed. The court struck out the first and second causes of action in the statement of claim, but the plaintiff may file an amended pleading. The proceeding is not dismissed. The plaintiff is to file and serve an amended statement of claim by 30 April 2021. The defendants are to file and serve statements of defence by 14 May 2021. The plaintiff is to file and serve any reply by 28 May 2021. The Registrar is to arrange a first case management conference. Leave is reserved to apply for further directions. The defendants are to pay costs. If counsel cannot agree costs, memoranda may be filed.