Armstrong v Morrison HC Napier CIV 2008-441-276

[2008] NZHC 2579

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CIV 2008-441-276

BETWEEN  DAVIDSON ARMSTRONG & CAMPBELL SOLICITORS NOMINEE COMPANY LIMITED

Plaintiff

ANDCHRISTOPHER WILLIAM MORRISON Defendant

Hearing:         18 September 2008

Appearances: Mr Krebs for applicant

Ms Tope for respondent

Judgment:      18 September 2008

ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE

Counsel

Mr J G Krebs, Barrister, Napier

Ms Z Tope, Solicitor, Napier

DAVIDSON ARMSTRONG & CAMPBELL SOLICITORS NOMINEE COMPANY LTD V  MORRISON HC NAP CIV 2008-441-276  18 September 2008

[1]      The plaintiff, which is a solicitors nominee company, obtained a charging order nisi 23 July 2008 on an ex parte basis.

[2]      A summary judgment was then entered on 12 August 2008 by Wilde J.  An application was made to discharge to rescind the charging order and that was dealt with by Gendall AJ on 24 July 2008.  The application was dismissed although there was a variation made to the scope of the charging order nisi by consent.

[3]      The applicant filed a notice of application to have charging order nisi made absolute pursuant to r 585 on 12 September 2008.  It now wishes to proceed and no notice of opposition has been filed to that application.

[4]      Today Ms Tope appeared for the respondent, she told me that:

a)        Mr Morrison the respondent was ill and in hospital in Auckland;

b)That she had instructions to apply to rescind the charging order nisi but could not do so at this stage because it would be necessary to obtain  a  waiver  of  the  filing  fee  payable  on  the  filing  of  the application;

c)       Mr  Krebs  now  wishes  to  proceed.    Ms  Tope  submits  that  the application to make the charging nisi should be adjourned;

[5]     No affidavit evidence has been filed of various allegations and counter allegations that were made, including that the respondent has been responsible for having third parties disperse part of the property which was subject to the charging order.  But equally no affidavit material which would justify an adjournment of the present application has been filed.  I accept Ms Tope’s word, of course, that she has been  instructed  that  the  respondent  is  ill  and  is  in  hospital  and  that  there  are

difficulties in filing an application to discharge.  But given that the respondent has had since July to make an application and given that an application has been made once already and declined, the merits of the case very much favour the applicant. The applicant obtained the order nisi in anticipation of obtaining a judgment.  Wilde J has entered that judgment.  I can see no good reason why the order should not be made absolute at this point and I grant the application.

[6]      The applicant is entitled to costs on a 2B basis together with disbursements as fixed by the Registrar.

J.P. Doogue

Associate Judge