ASB Bank Limited v Propdoc Limited
[2012] NZHC 2138
•22 August 2012
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CIV-2011-488-56 [2012] NZHC 2138
BETWEEN ASB BANK LIMITED Plaintiff
ANDPROPDOC LIMITED First Defendant
ANDCHRISTOPHER JOHN ROBINSON AND ALISON CHRISTINA ROBINSON
Second Defendants
ANDKILLARA PROPERTY LIMITED Third Defendant
Hearing: 22 August 2012
Counsel: EC Gellert and MA Powell for plaintiff
RAB Barnsdale, counsel assisting the Court Appearance: CJ Robinson, first-named second defendant in person Judgment: 22 August 2012
(ORAL) JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for summary judgment]
Solicitors: Simpson Grierson, Private Bag, 92 518, Auckland
And To: R Barnsdale, PO Box 19 303, Hamilton 3240
CJ and AC Robinson, 6 Tapu Creek Farms, RD 5, Thames
ASB BANK LIMITED V PROPDOC LIMITED HC HAM CIV-2011-488-56 [22 August 2012]
The first-named second defendant’s application for an adjournment
[1] The plaintiff’s application for summary judgment was allocated a fixture for hearing today. Mr Robinson seeks an adjournment to enable him to obtain a legal aid grant. Application was made some time ago and has not yet been resolved.
[2] No formal steps have been taken on behalf of the first defendant, the second- named second defendant and the third defendant. What is apparent, however, is that the position of the second defendants and the third defendant are similar and, for that reason, it is not appropriate in my view to hear the proceeding today because the position in relation to Mr Robinson is not ready.
Amendments
[3] This case concerns borrowing by the first defendant from the plaintiff and a property which was offered as security at 125A Hess Road, Waipapa. Following the issue of proceedings that property was sold. The plaintiff now seeks leave to file an amended statement of claim and verifying affidavit so that the Court is brought up to date with the appropriate outstanding balance due to the plaintiff after the sale.
[4] Generally speaking amendments are granted if: (a) It is in the interests of justice;
(b) It will not significantly prejudice the defendant; and
(c) It will not cause significant delay.[1]
[1] Elders Pastoral Ltd v Marr (1987) 2 PRNZ 383 (CA) at 385.
[5] The Court of Appeal, in Cegami Investments Ltd v AMP Financial
Corporation (NZ) Ltd confirmed that amendments to proceedings were possible in the summary judgment context.[2]
[2] Cegami Investments Ltd v AMP Financial Corporation (NZ) Ltd [1990] 2 NZLR 308.
[6] Counsel have confirmed to me that there is no issue that might ground a claim based on s 176 of the Property Law Act 2007 alleging the sale of the security property at an undervalue. When that fact is taken into account, and because I am granting further time, that will become evident in the orders made later in this judgment, I am satisfied that the three conditions that should be considered before amendment is granted are met in this case and therefore the amendment is justified.
[7] Accordingly, leave is granted to file the amended statement of claim and verifying affidavit.
Judgment for part of the claim against the first defendant
[8] I have recorded that no steps have been taken by the first and third defendants. In the case of the first defendant its director, Mr Robinson, has advised me that there can be no opposition to judgment for part of the claim against the first defendant in the sum of $450,000. Summary judgment for a part of a claim is permitted pursuant to r 12.2.
[9] Accordingly, judgment is entered in the plaintiff’s favour against the first
defendant for part of the claim in the sum of $450,000.
The balance of the claim against the first defendant
[10] Counsel and Mr Robinson have helpfully agreed that, in respect of the balance of the claim they may well be able to agree. To ensure that that process is carried through, by consent, I order that:
(a) Mr Robinson shall file and serve a memorandum which sets out his position in relation to the balance of the claim against the first defendant by 5 September 2012;
(b) The plaintiff shall file and serve any memorandum in response by
19 September 2012.
This issue will be considered at the adjourned fixture which I will allocate for this proceeding. For this purpose only I grant leave to Mr Robinson to appear on behalf of the first defendant.
The application for summary judgment against the second and third defendants
[11] In respect of the second and third defendants, and without opposition from the plaintiff, the application for summary judgment against those parties is adjourned to 10am on 26 November 2012. In respect of this fixture:
(a) The second and third defendants shall file and serve, by 19 September
2012, an amended notice of opposition and statement of defence, both of which must be filed in accordance with the High Court Rules, together with affidavits in opposition. For the avoidance of doubt I record that the current affidavits filed by Mr Robinson are not to be read. All matters he wishes to raise in opposition to summary judgment shall be incorporated in the further affidavits to be filed;
(b)The plaintiff shall file and serve, by 10 October 2012, affidavits in reply;
(c) The plaintiff shall file and serve, by 5 November 2012, a revised casebook of the pleading, amended applications and affidavits which is indexed and paginated, plus submissions in support and copies of all authorities referred to; and
(d)The defendants shall file and serve, by 12 November 2012, submissions in opposition, plus copies of all authorities referred to.
[12] For the sake of clarity I record that the defendants must comply with the orders that have been made today. If there is non-compliance in respect of a party, the matter will proceed against that party on an undefended basis. The third defendant must be represented by counsel.
[13] Costs in relation to the adjournment of that is fixture and the orders that have
been made today are reserved.
JA Faire
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