Al-Derzi v Al-Derzi

[2019] NZHC 1626

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000051

[2019] NZHC 1626

BETWEEN

FAYHA JASSIM AL-DERZI

Plaintiff

AND

FARIS AL-DERZI

Defendant

Hearing:	On the papers
Counsel:	J D Turner and A Tarabova for the Plaintiff
Judgment:	12 July 2019

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Friday, 12 July 2019 at 12:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:           McVeagh Fleming Lawyers, Albany

AL-DERZI v AL-DERZI [2019] NZHC 1626 [12 July 2019]

Background

[1]    On 2 July 2019 the plaintiff filed an application, by memorandum, requesting judgment by default against the defendant. This application was accompanied by a draft of the judgment sought.

[2]    The plaintiff seeks an award of the surplus of the net proceeds of sale of a mortgaged property under s 185(1)(f) of the Property Law Act 2007. The sum sought by the plaintiffs amounts to $752,758.01 and all or any accrued interest on it.

Law

[3]    The plaintiff relies on rr 15.4 and 15.7 of the High Court Rules 2016. Rule 15.7 provides that when a plaintiff claims payment of a liquidated demand and no statement of defence has been filed within the number of working days required by the notice of proceeding, the plaintiff may seal judgment for that sum, plus interest, costs and disbursements. Rule 15.4 provides that an affidavit of service of the statement of claim and notice of proceeding must be filed before a judgment by default can be sealed, along with an affidavit verifying the statement of claim if service was not effected personally on the defendant or its solicitor.

Application for judgment by default

[4]    The property at 130 Coronation Street, Hillcrest, Auckland, was sold in a mortgagee sale on 30 August 2018. The surplus sale proceeds are currently held by the mortgagee, the ASB Bank. The plaintiff is a previous mortgagor of the property. In January 2019, she commenced a proceeding in the Auckland High Court against the defendant, the other previous mortgagor of the property, for the distribution of the mortgagee sale proceeds. The notice of proceeding, dated 21 January 2019, notified the defendant that his statement of defence had to be filed within 25 working days of being served the notice.

[5]    On 4 June 2019, Associate Judge Andrew granted an application for substituted service. He was satisfied that the plaintiff had made reasonable attempts to effect personal service on the defendant at his last known address in New Zealand, but that

prompt personal service could not be effected because the defendant apparently resides permanently overseas. Directions were given that service would be deemed to be effected when the relevant documents were sent to the defendant via email and Facebook Messenger. This order is recorded in the Judge’s minute of 4 June 2019.

[6]    Counsel for the plaintiff confirmed that service was deemed to have occurred on 13 May 2019. The defendant has not since filed a statement of defence and the time to file a statement has since lapsed. No other steps have been taken by the defendant in this proceeding.

[7]    Counsel for the plaintiff has provided that the plaintiff’s verified affidavit, dated 11 February 2019, confirms the allegations of her statement of claim. The affidavit confirms the plaintiff’s entitlement to the sum sought. Counsel for the plaintiff provided statements and correspondence with ASB confirming the quantum of the sum.

Order

[8]    I am satisfied that the plaintiff is entitled to a default judgment. Because the defendant has not filed a statement of defence on the Court, judgment is given that the plaintiff recover under s 185(1)(f) of the Property Law Act 2007 the sum of

$752,758.01 and all or any accrued interest on it from the mortgagee of the property of 130 Coronation Road, Hillcrest, Auckland, or any other person that currently holds the surplus sale proceeds from the mortgagee sale of the property that occurred on  30 August 2018.

[9]    The plaintiff does not seek an order for costs and disbursements against the defendant.

Woolford J