Arakatara v Dobwood Properties Limited

[2014] NZHC 883

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV2013-483-000139 [2014] NZHC 883

BETWEEN

PHILIP ARAKATARA

Applicant

AND

DOBWOOD PROPERTIES LIMITED Respondent

Hearing:	30 April 2014
Appearances:	S Burlace for the Applicant E J Unsworth for the Respondent
Judgment:	30 April 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

P ARAKATARA v DOBWOOD PROPERTIES LIMITED [2014] NZHC 883 [30 April 2014]

[1]      Today’s hearing was scheduled to hear Mr Arakatara’s application to set aside an order granting summary judgment against him made on 4 September 2013.  That judgment was for $73,360.41 inclusive of interest costs and disbursements.

[2]      In his directions for today’s hearing Associate Judge Smith on 6 March 2014 noted, inter alia:

(a)       Mr Chambers had recently been instructed by Mr Arakatara.

(b)      Mr Chambers requested that Mr Arakatara (have and was permitted)

14 days to file affidavits in reply.

(c)       A half day hearing was scheduled for today.

(d)Submissions and associated documents on behalf of Mr Arakatara were to be filed by 10 April 2014.

Developments since 6 March 2014

[3]      On 24 March 2014 Mr Arakatara’s affidavit in reply was filed.

[4]      On 7 April 2014 the Court received from Mr Chambers a memorandum seeking leave to withdraw.  It advised, inter alia:

(a)     Mr Chambers and his instructing solicitor had received express instructions from Mr Arakatara terminating their engagement as counsel and solicitor and requesting the files be returned to Mr Arakatara to an address that he provided.

(b)      Accordingly leave to withdraw was sought. (c)           That Mr Arakatara’s contact details were:

(i)       Address:.

(ii)      Telephone: mobile –

[5]      Subsequently  and  in  response  to  an  inquiry  from  Dobwood’s  counsel

Associate Judge Smith directed, inter alia:

(a)      Mr Arakatara was to file a notice of change of representation and change of address for service by 17 April 2014.

(b)      The time for Mr Arakatara to file his submissions was extended from

10 April until 17 April.

[6]      At  4:29pm  on  29  April  2014  the  Court  received  a  facsimile  from  Mr Arakatara referring to both the setting aside application and to Dobwood’s adjudication application (both due for call the following day) advising, inter alia:

(a)      That he had received that day a facsimile from Mr Chambers advising that they would not be attending Court the following date to represent him.

(b)      That he needed to be legally represented.

(c)      That he had paid thousands of dollars to his barrister to attend to matters and he considered the barrister’s conduct in the circumstances to be disgraceful.

(d)That he wanted an adjournment and would instruct Ms S Burlace to appear to request an adjournment.

[7]      Mr Arakatara’s facsimile provided the following contact details:

(a)       . (b)

[8]      When  the  matter  was  called  before  me  today  Ms  Burlace  appeared  and requested an adjournment.

[9]      I asked her when she had received instructions.  She said yesterday at around lunchtime, that her office had received a call from Mr Arakatara requesting she appear to obtain an adjournment.  Because of her other court commitments that day Ms Burlace did not receive those instructions until late that afternoon.

[10]     And so when the matter was first called this morning, I adjourned the matter for an hour to enable Ms Burlace to endeavour to contact Mr Arakatara to advise him the Court was inclined to dismiss the setting aside application, and further would give consideration to making orders upon the adjudication application which had also been called for hearing.

[11]     When  these  matters  were  recalled  later  it  was  confirmed  to  me  by  the Registry that the adjudication application had indeed been scheduled for a recall in conjunction with the setting aside application.

[12]     Then Ms Burlace advised that she had contacted both telephone numbers provided by Mr Arakatara but those calls had been relayed to an answering service. Ms Burlace confirmed she had advised Mr Arakatara that the Court was inclined to refuse the adjournment request and further that it proposed to dismiss the setting aside application.

Considerations

[13]    When Associate Judge Doogue heard and granted Dobwood’s summary judgment  application  on  4  September  2013  the  learned  Judge  noted  that  Mr Arakatara had taken no steps to oppose the application but had, later in the piece, instructed lawyers who informed the Court that:

(a)       A statement of defence had not been filed because Mr Arakatara had health issues; that he had intended to represent himself.

(b)Mr Arakatara had no independent verification of the reasons offered for his having taken no steps.

(c)       Notwithstanding Mr Arakatara’s protestations of an arguable defence

the Court had no evidence to support such claims.

[14]     Mr Arakatara asserts that he only heard yesterday that Mr Chambers would not represent him.  This claim has to be measured by reference to other information available to the Court, namely:

(a)      That Mr Chambers reports by memorandum dated 7 April 2014 that he had received express instructions terminating his engagement.

(b)Attached to an email from Mr Chambers dated 22 April 2014 was a copy of Mr Chambers’ email to Mr Arakatara dated 14 April 2014 [enclosing details of Associate Judge Smith’s timetable extensions] and noting:

While my instructions in this matter are at an end and I am certain  that  the  Wanganui  High  Court  Registry  shall  also inform you of the enclosed minute, as a matter of courtesy to the Court, I feel it to be requirement that I forward you a copy also.

[15]     The contents of these communications is to be measured against the claim of Mr Arakatara that only yesterday did he receive advice from Mr Chambers that he would not be represented today.

Conclusions

[16]     Although served with the summary judgment application Mr Arakatara took no steps to defend it.   Attempts to adjourn the summary judgment hearing were based on claims unsupported by evidence.

[17]     Four months after making of the order for summary judgment Mr Arakatara applied for an order setting aside summary judgment, by which time he had been served, through counsel, and pursuant to an order for substituted service, with the

bankruptcy  adjudication  application.    Mr  Arakatara’s  first  counsel  Mr  Molloy applied on 21 January 2014 for an order declaring that he had ceased to act for Mr Arakatara.   At that time Mr Arakatara filed a memorandum advising that he then acted in person.

[18]     Four days before the first call of the setting aside application on 7 March

2014 Mr Chambers filed and served a memorandum advising he had been instructed, and requested further time to file and serve evidence in reply.  Directions accordingly were made by Associate Judge Smith on 6 March 2014.  Although an affidavit in reply was filed on 24 March 2014, little more than two weeks later Mr Chambers filed a memorandum seeking leave to withdraw.

[19]     Despite an extension of time being granted to enable submissions to be filed by or on behalf of Mr Arakatara these had never been filed.

[20]     Mr Arakatara blames Mr Chambers’ actions in support of his request for an adjournment at today’s hearing.  There is good cause to doubt Mr Arakatara’s claims of only having received yesterday, advice that Mr Chambers would not be representing him at today’s hearing.

[21]     The Court considers there is no proper basis for adjourning the setting aside application any further.

Judgment

[22]     The application to set aside summary judgment is dismissed.

[23]     Ordinarily costs would be awarded on a 2B basis.  In this case the Court is prepared to order costs on a 2B basis together with 50 per cent uplift, subject to the Court’s approval of respondent/plaintiff counsel’s calculations.

Other

[24]     In the circumstances the adjudication application will be adjourned, but for a brief period only.  The matter is to be recalled in the bankruptcy list in Wanganui on

21 May 2014 at 10:00am.  In making that direction the Court informed Ms Burlace on behalf of Mr Arakatara that the only reasons likely to be entertained by the Court for  dismissing  the  adjudication  application  is  that  Mr  Arakatara  had  paid  the judgment debt of $73,360.41.  At that time advice was given to Ms Burlace for relay to Mr Arakatara that there would be no adjournment of the adjudication application even if the Court was to be informed that Mr Arakatara had filed an appeal of this

decision.

Associate Judge Christiansen