Slavich v Slavich
[2025] NZHC 1659
•23 June 2025
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2024-404-3107 [2025] NZHC 1659
BETWEEN ANTHONY NICHOLAS SLAVICH
First Plaintiff
KIRSTY DE MEYER
Second Plaintiff
SLAVICH PROPERTIES CO. LIMITED
Third PlaintiffJOHN SLAVICH
Fourth PlaintiffNIC SLAVICH LIMITED
Fifth Plaintiff
AND PETER SLAVICH,
FRANA VAN HELLEMOND, MARICA SLAVICH and NICHOLAS SLAVICH
Defendants
Hearing: 10 June 2025
Appearances: Kirsty De Meyer and John Slavich are self-represented T M Braun / P J McHugh for the Defendants
Judgment: 23 June 2025
JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR
[Application by the plaintiffs for summary judgment]
[Application by the defendants for defendants summary judgment]
This judgment was delivered by me on 23 June 2025 at 3:00pm
pursuant to Rule 11.5 of the High Court Rules
……………………………………. Registrar/Deputy Registrar
SLAVICH v SLAVICH [2025] NZHC 1659 [23 June 2025]
Introduction
[1] The plaintiffs seek summary judgment for an order that the defendants engage in arbitration to resolve issues between the parties stemming from an historical property transaction. This would allow approximately $550,000 of funds held on trust by Insight Legal Ltd to be disbursed to Nic Slavich Ltd (NSL) based on the arbitrator's decision.1
[2] Mr John Slavich (John)2 filed an application for summary judgment on behalf of all plaintiffs, claiming that the defendants had agreed to arbitrate the dispute, and that they had no defence to this claim.
[3] The defendants are some of the shareholders in NSL. They have filed their own application for summary judgment against the plaintiffs and argue that if the plaintiffs’ application is dismissed, as a corollary, the defendants are entitled to defendants’ summary judgment.
[4] The plaintiffs allege that, during a special meeting of the shareholders, the defendants agreed to go to arbitration if agreement between the parties could not be reached. Because no agreement has yet been reached, the plaintiffs claim that the defendants are obliged to enter arbitration. The defendants claim that no such agreement was reached, so there is no agreement binding them to arbitration.
Background
[5]NSL’s dairy farm was sold, with settlement on 1 June 2017.
[6] In an email of 12 May 2017 the defendants, via their solicitors Beattie Rickman, advise that, among other things, they required the net sales proceeds to be held on trust by NSL’s solicitors, Insight Legal Ltd (Insight Legal). This was to
1 The plaintiffs also seek an order that the funds held by Insight Legal Ltd under its undertaking are to be released to Nic Slavich Ltd in accordance with the arbitrator's decision, when made, and an order for costs against the defendants.
2 Given the commonality of surnames, I will use first names in this judgment. No disrespect is intended.
be until such time as their 11 listed “matters can be addressed and satisfactorily resolved”. A letter of 12 May 2017 records Insight Legal advising Beattie Rickman that on instructions from NSL, they give their undertaking to hold the net funds on trust.
[7] Between 12 May 2017 and 24 March 2022, numerous efforts were made to resolve matters between NSL and the defendants. Some matters were resolved, leaving around about $550,000 still being held under the undertaking.
[8] Attempting to resolve matters, Mr Anthony Slavich (Anthony) called a special meeting of the shareholders of NSL on 25 March 2022 (the Meeting). There is dispute as to what happened at the Meeting.
[9] The plaintiffs allege that at the Meeting the following two matters, among others, were agreed to by the shareholders and beneficial shareholders (as recorded in the minutes);
(a)that the undertaking asked for and agreed to (in respect of Insight Legal) was defective; and
(b)that “arbitration would follow if settlement was not reached”.
[10] The defendants submit that if the plaintiffs’ application is dismissed, then their application for summary judgment should succeed.
Legal principles
Plaintiffs’ summary judgment
[11]Rule 12.2(1) of the High Court Rules 2016 provides:
(1)The court may give judgment against a defendant if the plaintiff satisfies the court that the defendant has no defence to a cause of action in the statement of claim or to a particular part of any such cause of action.
[12] The relevant principles governing a summary judgment application are well established:3
The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried … The Court must be left without any real doubt or uncertainty. The onus is on the plaintiff, but where its evidence is sufficient to show there is no defence, the defendant will have to respond if the application is to be defeated … The Court will not normally resolve material conflicts of evidence or assess the credibility of deponents. But it need not accept uncritically evidence that is inherently lacking in credibility, as for example where the evidence is inconsistent with undisputed contemporary documents or other statements by the same deponent or is inherently improbable … In the end the Court’s assessment of the evidence is a matter of judgment. The Court may take a robust and realistic approach where the facts warrant it …
[13]The wording of r 12.2 “may give judgment” indicates a residual discretion.
Having regard to the various authorities, the position appears to be as follows:4
(a)The discretion implied by the use of the word “may” is to be restrictively applied. In a great majority of cases, once the court is satisfied the defendant has no defence, there is no room for the exercise of discretion.
(b)The residual discretion may be invoked to avoid oppression or injustice to the defendant where:
(i)The proceeding involves the actions or possible liability of a third party which is not before the court;
(ii)The proceedings are such that the opportunity should be given to allow discovery or other interlocutory applications to be concluded;
(iii)The circumstances of the case disclose very unusual features, the presence of which leads the court to conclude that the entry of summary judgment would be oppressive or unjust; or
(iv)The combination of complex issues of fact and law justify the dismissal of the application for summary judgment, either as a matter of discretion or because the court cannot be satisfied that the defendant has no defence.
(c)Even where the court is not satisfied that a defence has been made out, in exceptional circumstances the application may be adjourned to allow for other processes to be followed.
3 Krukziener v Hanover Finance Ltd [2008] NZCA 187, [2010] NZAR 307 at [26] (citations omitted).
4 Andrew Beck and others (eds) McGechan on Procedure (online ed, Thomson Reuters) at [HR12.2.11].
Defendants’ summary judgment
[14] Rule 12.2(2) of the High Court Rules 2016 provides that the Court may enter judgment against a plaintiff if the defendant satisfies the Court that none of the causes of action in the plaintiff’s statement of claim can succeed.
[15] The test for defendant’s summary judgment was set out by the Court of Appeal in Stephens v Barron:5
(a)The defendant has the onus of proving on the balance of probabilities that the plaintiff cannot succeed. Usually this will arise where the defendant can offer evidence which is a complete defence to the plaintiff’s claim.
(b)An application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment able to be properly arrived at only after a full hearing of the evidence.
(c)The Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment is not to be arrived at on a fine balance of the available evidence as would be appropriate at a trial.
(d)The residual discretion of the Court to refuse summary judgment would be properly invoked to avoid the oppression which would otherwise result if an application by a defendant for summary judgment would pre-empt a plaintiff exercising the right to amend the pleadings.
(e)Summary judgment should not be applied for unless the substantive merits of the case are clear and capable of summary disposal.
[16]In Westpac Banking Corp v M M Kembla New Zealand Ltd, Elias CJ said:6
[63] Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff's claim. That would permit a defendant, perhaps more in possession of the facts than the plaintiff (as is not uncommon where a plaintiff is the victim of deceit), to force on the plaintiff's case prematurely before completion of discovery or other interlocutory steps and before the plaintiff's evidence can reasonably be assembled.
5 Stephens v Barron [2014] NZCA 82 at [9] (footnotes omitted).
6 Westpac Banking Corp v M M Kembla New Zealand Ltd [2001] 2 NZLR 298.
[64] The defendant bears the onus of satisfying the Court that none of the claims can succeed. It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own. Even then it is perhaps unhelpful to describe the effect as one where an onus is transferred. At the end of the day, the Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.
[17] In Bernard v Space 2000 Ltd, Thomas J, referring to r 12.2(2)’s predecessor, described the onus on the defendant as requiring a “king hit”:7
Rule 136(2) … is only appropriate where the defendant has a “clear answer to the plaintiff which cannot be contradicted”. Summary judgment for a defendant “will arise where the defendant can offer evidence which is a complete defence to the plaintiff's claim” … The requirement that there be a clear answer which cannot be contradicted and a complete defence before judgment is entered for a defendant under r 136(2) is not to be disregarded. Examples which are given of appropriate cases for summary judgment under the subrule are where the wrong plaintiff has proceeded … or where the situation is clearly one of qualified privilege … Thus, the subrule contemplates an answer which is clear-cut; what in colloquial language would be described by counsel as a “king hit”.
Issues to be determined in this judgment
[18] The issue to be determined in this judgment is whether any of the defences raised by the defendants to the plaintiff’s summary judgment application are reasonably arguable. If so, summary judgment should be refused.
[19] The defences raised by the defendants are that no binding arbitration agreement was reached at the Meeting. The defendants submit that an agreement to arbitrate, being a contractual agreement, requires the necessary elements of formation of a binding contract being:
(a)offer and acceptance;
(b)consideration;
(c)intention to create legal relations;
7 Bernard v Space 2000 Ltd (2001) 15 PRNZ 338 at [21] (citations omitted).
(d)certainty of terms.
[20]The defendants submit:
(a)there was no consideration passed from either the plaintiffs or the defendants with respect to the purported agreement to arbitrate;
(b)there was no intention to create legal relations at the Meeting;
(c)there is no certainty over the matters in dispute that were to be put to arbitration;
(d)the agreement at the Meeting relied on an informal proxy of one of the defendants which was invalid.
I deal with each of the grounds in turn.
[21] An arbitration agreement is defined in s 2 of the Arbitration Act 1996 (the Act) to mean:
… an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.
[22] Rule 7 in Schedule 1 of the Act, states that an arbitration agreement can be oral or in writing. The portion of the minutes of the Meeting relied upon by the plaintiffs as creating a binding agreement to arbitrate is as follows:
Nicholas and Peter suggested that arbitration process should apply to both offers. The chairman advised the separate Slavich Properties offer will require Kirsty to give her consent to go to arbitration if no settlement is made on that offer. After further discussion, and subject to that, all agreed that arbitration would follow if settlement was not reached.
No consideration
[23] Mr Braun, for the defendants, submits that no consideration passed from either the plaintiffs or the defendants with respect to the agreement to arbitrate because the plaintiffs have not provided any benefit to the defendants and nor have they suffered
a detriment requested by the defendants. Similarly, he submits the defendants have not provided the plaintiffs with any benefit or suffered a detriment requested by the plaintiffs. He submits, therefore, that as no consideration is present, there cannot be a binding agreement to arbitrate.
[24] John submitted that there was consideration for the agreement to arbitrate and submitted the following benefits to the parties were present:
(a)NSL would not be put into liquidation, and the funds held by Insight Legal would not be depleted by a liquidator’s fees in the liquidation;
(b)no further legal fees would be incurred by the parties as the disputes would be resolved by arbitration;
(c)Slavich Properties Co. Ltd (SPL) would receive payment quickly if the debt allegedly owed by NSL to SPL was found to be valid by the arbitrator and this would cause interest (set at nine per cent per annum) to stop accruing on the debt;
(d)the arbitrator would decide whether the loan amounts owing by Marica Slavich (Marica) and Nicholas Slavich (Nicholas) to NSL were valid. Those loans could then be repaid from dividends paid by NSL to Marica and Nicholas once the funds held by Insight Legal were released;
(e)this is an eight-year-old dispute so there is a benefit in the arbitration process as it is more informal than litigation, allowing parties to put their arguments directly to the arbitrator;
(f)the four outstanding information questions which the defendants allege have not been answered by NSL/the plaintiffs would be settled by the arbitrator quickly; and
(g)once the arbitrator has determined whether the debt is owing by NSL to SPL, then NSL can deal with the debt, pass the solvency test, and therefore declare dividends from the funds held by Insight Legal.
Conclusion on consideration
[25] My view is that the plaintiffs have a reasonable argument that consideration was present in the alleged agreement to arbitrate for at least for some of the reasons outlined by John. Lack of consideration is therefore not a ground that can be relied on at the summary judgment stage.
No intention to create legal relations
[26] Mr Braun submits that whether the parties intended to create legal relations is determined objectively and this determination is made from the matrix of facts that surrounds the formation of the “agreement”.8
[27] Mr Braun submits that, pointing to the evidence of Marica in her affidavit of 5 March 2025, it is clear that although there was a formality to the Meeting, she and the other defendants did not appreciate the consequences of that formality. He submits:
(a)the defendants considered themselves present at a family meeting to discuss a wider family dispute that involved the management and affairs of both NSL and SPL;
(b)the defendants, during the Meeting, had no intention of being legally bound to submit any matter to arbitration and were exploring options, not committing to a binding process.
[28] John rejects the assertion that the defendants did not intend to create legal relations at the Meeting, and submits as follows:
8 Electricity Corporation of New Zealand Ltd v Fletcher Challenge Energy Ltd [2002] 2 NZLR 433 at [54] and [55].
(a)The defendants are directors of several companies and are acquainted with the formalities of company meetings. He referred to Companies Register searches showing Marica, Nicholas, and Peter Slavich (Peter) are directors of Thames Valley Floorsanders (2015) Ltd, Thames Valley Mechanical Services Ltd and Slavich Construction Ltd respectively;
(b)the defendants knew what the consequences of the Meeting were. No reply affidavit has been filed by the defendants to Anthony’s affidavit (Anthony’s affidavit),9 and the other defendants have not filed affidavits confirming their understanding of what was occurring at the Meeting and supporting Marica’s affidavit. He submits that the Court should draw an adverse inference as to the defendants’ credibility from the lack of affidavit evidence from the defendants;
(c)the defendants did not attempt to add family matters to the agenda when it was circulated. Nothing was raised in respect of the alleged wider family discussion until 2025, some three years after the Meeting;
(d)agenda items 1 and 2 of the Notice of Meeting made the purpose of the Meeting clear—to arbitrate the dispute to overcome the deficiency in the undertaking given by Insight Legal in respect of the funds held by them.
[29] John submits that accordingly the defence put forward that the Meeting was to discuss wider family matters and explore options is not credible, particularly having regard to the absence of any reply affidavits filed to Anthony’s affidavit.
Conclusion on intention to create legal relations
[30] I am of the view that it is reasonably arguable by the defendants that there was no intention to create binding legal relations at the Meeting in respect of the agreement to arbitrate for the following reasons:
9 Affidavit of Anthony Nicholas Slavich dated 10 March 2025 in response to the affidavit of Marica Patrica Slavich.
(a)There is a conflict between Anthony’s evidence and Marica’s evidence which cannot be resolved in the context of a summary judgment application. Evidence will likely be required from the other defendants as to their understanding of the intentions at the Meeting and the evidence tested at trial.
(b)Correspondence subsequent to the Meeting supports the inference that the defendants had not considered that a legally binding agreement to arbitrate had been made at the Meeting. Mr Braun pointed to an email from the defendants’ then solicitors, Beattie Rickman Legal, dated 4 May 2023, the last paragraph of which indicates that the defendants regarded themselves as not having committed to an arbitration process.
[31] Accordingly, in my view, the defendants have an arguable defence on the ground that there was no intention at the Meeting to create a legally binding agreement to arbitrate.
Certainty of terms
[32] Mr Braun submits that in cases of an agreement to arbitrate, certainty over what is in dispute is an essential term contained in the definition of “agreement to arbitrate”. He submits in this instance there is no certainty over the matters that were in dispute and in respect of which the parties allegedly agreed to go to arbitration. He submits:
(a)the Notice of the Meeting does not fairly stipulate the items in dispute between the parties. The only reference to arbitration is in its second paragraph, which does not clearly spell out the extent of the dispute to be arbitrated in the terms the plaintiffs now frame it as;
(b)the scope of the dispute to be arbitrated is set out in Anthony’s affidavit,10 and is quite different to the issues as set out in the Notice of Meeting. While the plaintiffs are adamant that the issues to be
10 At [33].
arbitrated were well known, this is not recorded in the relevant documentation of the alleged agreement to arbitrate.
[33] John, in response to this claim, points to Anthony’s affidavit and asserts that it was clear that the matters in dispute were financial amounts in dispute in relation to NSL apart from (the then) $717,892 being held by Insight Legal, and the four non- financial information issues which the defendants’ claim were unanswered. He submits these were all known to Marica and the other defendants as the defined the scope of the dispute.
[34] John submits that the defendants’ claim that they did not know the scope of the dispute to go to arbitration is not credible.
Conclusion in respect of certainty of terms
[35] I am of the view that the defendants have a reasonable argument that the scope of the dispute to be referred to arbitration was not sufficiently certain to create a binding agreement to arbitrate for the following reasons:
(a)While the various matters in dispute were discussed by the shareholders and there had been extensive to-ing and fro-ing over the period since 2017, there was no clear delineation of these matters in the Notice of Meeting or in the minutes which sets out clear terms of any agreement to arbitrate. Marica’s evidence raises the issue that the intention at the Meeting (of at least her and possibly the other defendants) was a wider discussion relating to both NSL and SPL, and she asserts that disputes in respect of both companies were to be dealt with together.
(b)Although there is no evidence filed by the other defendants as to their understanding of what matters were to be arbitrated, there was no resolution passed resulting from the Meeting, nor any process whereby the minutes were circulated with a request for disagreement in respect of the record before they were finalised. There is a plethora of information about the issues which have been discussed between the parties off and on for a considerable period of time, but no definitive
statement of what was agreed to be referred to arbitration at the Meeting.
Proxy issue
[36] It is common ground that Frana van Hellemond (Ms Hellemond), one of the defendants, was not present at the Meeting. The plaintiffs have submitted that Marica and Nicholas held an informal proxy from Ms Hellemond.
[37] Mr Braun submits there is no scope for a proxy to be appointed informally. He points to the following:
(a)Section 124 of the Companies Act 1993 records that:
The provisions of Schedule 1 govern proceedings at meetings of shareholders of a company except to the extent that the constitution of the company makes provision for the matters that are expressed in that schedule to be subject to the constitution of the company.
(b)Rule 6 of Schedule 1 of the Companies Act states:
(3)A proxy must be appointed by notice in writing signed by or, in the case of an electronic notice, sent by the shareholder and the notice must state whether the appointment is for a particular meeting or specified term.
(4)No proxy is effective in relation to a meeting unless a copy of the notice of appointment is produced before the start of the meeting.
(c)Likewise, the constitution of NSL mirrors these rules:
(i)At clause 17.6(3) the constitution records:
A proxy must be appointed by notice in writing signed by the shareholder and the notice must state whether the appointment is for a particular meeting or a specified term not exceeding 12 months.
(ii)clause 17.6(4) states that:
No proxy is effective in relation to a meeting unless a copy of the notice of appointment is produced before the start of the meeting.
[38]He submits that:
(a)the rules and clauses employ mandatory language and accordingly a proxy “must” be appointed in writing and no proxy is effective “unless” a copy of that notice is produced before the start of the Meeting; and
(b)it is common ground that Ms Hellemond did not appoint Marica or Nicholas as her proxy and no notice of appointment was provided at the Meeting. Accordingly, any purported agreement made on behalf of Ms Hellemond to arbitrate is invalid.
[39]John, in response to this issue, submits that:
(a)the shareholders present at the Meeting consented to the Meeting proceeding on the basis that Marica and Nicholas were to act as Ms Hellemond’s informal proxy; and
(b)if Ms Hellemond, not having a valid proxy prevents her from being regarded as a party to the agreement to arbitrate, then the Court should give judgment in respect of the defendants other than Ms Hellemond, and following the arbitration Ms Hellemond can either accept or reject the arbitrated outcome.
[40] Mr Braun submits that it is not up to the shareholders present at the Meeting to appoint Marica and Nicholas as Ms Hellemond’s proxy as, pursuant to the Companies Act 1993 and NSL’s constitution, that authority only lies with Ms Hellemond. Accordingly, Ms Hellemond’s proxy was invalid and the Meeting’s record cannot support an agreement by Ms Hellemond to arbitrate.
[41] Mr Braun submits that a judgment by the Court to arbitrate applicable to the defendants other than Ms Hellemond is not possible, and either there was a binding agreement between all defendants, as alleged by the plaintiffs, or there was no agreement at all.
Conclusion in respect of proxy
[42] I am of the view that there was no valid proxy appointed for Ms Hellemond in accordance with the Companies Act or the constitution of NSL. The informal proxy was ineffective and accordingly there was no agreement by Ms Hellemond to arbitrate. It is not possible for summary judgment to be given in respect of some of the defendants only, as there was either a binding agreement by all the parties to arbitrate or no binding agreement, and none of the parties are obligated to arbitrate.
Result
[43] I am of the view that the plaintiffs’ application for summary judgment should be dismissed. Due to the conclusions I have reached at [25], [30], [35] and [42], the defendants have a reasonably arguable defence that there is no binding agreement to arbitrate applicable to all of the defendants. Accordingly, summary judgment must be declined.
[44] As a corollary of dismissing the plaintiffs’ application for summary judgment, the defendants’ application for summary judgment succeeds. The cause of action alleged by the plaintiffs that there was a binding agreement between NSL and the defendants to arbitrate the outstanding dispute between them, cannot succeed in the light of my findings. This is a complete answer to the plaintiff’s claim, and accordingly the defendants are entitled to summary judgment on their application.
Orders
[45]I make the following orders:
(a)The plaintiffs’ application for summary judgment against the defendants is dismissed;
(b)the defendants’ application for defendant’s summary judgment against the plaintiffs is granted;
(c)costs in respect of the plaintiffs’ application for summary judgment are, in accordance with the usual position on costs in unsuccessful summary
judgment applications, reserved to be dealt with as part of the substantive proceedings;
(d)the defendants are the successful parties in respect of the defendants’ application for summary judgment against the plaintiffs, and costs should follow the event. Counsel for the defendants and the plaintiffs (self-represented) are directed to endeavour to agree costs and, failing agreement being reached within a period of 20 working days from the date of this judgment, counsel for the defendants will file a memorandum as to costs (not to exceed five pages) within 5 working days after the expiry of the 20 working day period, and the plaintiffs will file a memorandum (not to exceed five pages) in response within 5 working days of receipt of counsel for the defendants memorandum. A decision as to costs will then be made on the papers.
…………………………….. Associate Judge Taylor
Solicitors:
Braun Bond & Lomas (Toby M Braun/Philip J McHugh), Hamilton, for the Defendants
Copy for:
The (self-represented) plaintiffs