Sain v Millie Erceg Trustee Limited - [2020] NZHC 1723

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000546

[2020] NZHC 1723

UNDER the Land Transfer Act 2017

IN THE MATTER

of an application under s 143

BETWEEN

VINKA PATRICIA SAIN
Applicant

AND

MILLIE ERCEG TRUSTEE LIMITED

Respondent

Hearing: 13 July 2020

Counsel:

DR Bigio QC and GA Ireland for Applicant DM Hughes and RA Idoine for Respondent

Judgment:

16 July 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on 16 July 2020 at 2.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: LawWorks, Auckland. Anthony Harper, Auckland. DR Bigio QC, Auckland.

SAIN v MILLIE ERCEG TRUSTEE LTD [2020] NZHC 1723 [16 July 2020]

The case

[1] In 2005, Michael Erceg died in an accident. Michael was very wealthy. Litigation has since befallen the family. In this case, Michael’s sister, Vinka Sain, seeks to sustain a caveat over property controlled by their brother, Ivan Erceg, once in the name of their mother, Millie Erceg.1 Vinka contends Michael promised the property to her when Mrs Erceg died. Ivan says Vinka’s claim to the property is not reasonably arguable, hence the caveat should not remain.

[2] It is common ground Vinka’s claim is not supported by contemporaneous documentation.

Background

The claim (to the property)

[3] In late 2004, 17 Withiel Drive, Epsom, was auctioned. Michael attended. So too Ivan, Peter Sain (Vinka’s husband) and Petar (Vinka’s son). Mrs Erceg, for whom Michael wanted to buy the property, stayed in the car. Ivan placed Michael’s bids, so attention was not on him. Michael won. He bought the property for $1.7 million. Mrs Erceg later moved in. Her name went on the title. Michael paid the entire purchase price.

[4] Vinka says Michael repeatedly said she was to have the property when their mother died, so Mrs Erceg’s interest was lifelong only. Petar says Michael made this clear to his mother immediately after the auction, during a celebratory conversation in its grounds. Peter offers the same account.

[5] Andrew Peat is a builder connected to the Erceg family. Mr Peat worked on the property. Mr Peat says Mrs Erceg threw a party when renovations were complete. Mr Peat says Mrs Erceg said to Vinka, “all this is going to be yours one day as that is what Michael wanted”.

1 Mrs Erceg.

Ivan’s position

[6] Ivan was at the auction too. Ivan says there was no discussion about the house going to Vinka on their mother’s death. Ivan also says Mr Peat is not independent, as Mr Peat used to work for a business owned by Ivan. Ivan says Mr Peat left “in acrimonious circumstances in around 2004”.2

[7] Ivan believes Michael gave Mrs Erceg an interest-free loan in relation to the purchase price, which Michael forgave in his will when forgiving all family members of their debts to him.

Post-purchase events

[8] On 14 June 2005, Mrs Erceg made a will. Mrs Erceg left the…

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.

Keep reading for free

Create a free CaseChat account to read Sain v Millie Erceg Trustee Limited and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZHC 1723
Decision Date: 16 July 2020

CaseChat Overview and Summary

The case of Sain v Millie Erceg Trustee Limited was heard in the High Court of New Zealand, Auckland Registry. The applicant, Vinka Patricia Sain, sought to sustain a caveat over a property that was controlled by her brother, Ivan Erceg, who had previously been in the name of their mother, Millie Erceg. Vinka claimed that Michael, another brother, had promised her the property when their mother died. Ivan argued that Vinka's claim to the property was not reasonably arguable and the caveat should be removed. The central legal issue before the court was whether Vinka's claim was reasonably arguable, which would allow the caveat to be sustained under the Land Transfer Act 2017. The court held that Vinka's claim was reasonably arguable, primarily because if her evidence and that of her witnesses were accepted, it could establish the claim. The court also found that the absence of supporting contemporaneous documentation, while notable, was not necessarily decisive given the context of the case. The judge concluded that the caveat could be sustained on the condition that Vinka filed a statement of claim within 30 days and diligently prosecuted her claim to a conclusion. The court did not find evidence of an abuse of process in the registration and withdrawal of successive caveats by Vinka, noting the unique family dynamics and the potential for legitimate reasons behind her actions.

Orders