Auckland Council v Rupa

[2024] NZHC 1465

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-347

[2024] NZHC 1465

UNDER

the Local Government (Rating) Act 2002

IN THE MATTER

of the rating sale of 103 Wellington Street, Freemans Bay

BETWEEN

AUCKLAND COUNCIL

Plaintiff

AND

DALIP KUMAR RUPA, SARDA DEVI RUPA AND REWA KARA JAGA RUPA

Defendants

Hearing:

5 June 2024

Appearances:

K E Cotter for plaintiff

No appearance by or on behalf of defendants

Judgment:

5 June 2024

ORAL JUDGMENT OF JOHNSTONE J

Solicitors:

Auckland Council

Ngā Ratonga Ture/Legal Services, Auckland

AUCKLAND COUNCIL v RUPA & ORS [2024] NZHC 1465 [5 June 2024]

[1]                 In October 2020, the Auckland Council applied to the Registrar of this Court under s 67 of the Local Government (Rating) Act 2002, to have a judgment it had obtained in the Auckland District Court enforced by the sale or lease of two rating units: properties at 103 Wellington Street, Freemans Bay, and at 5 Beaconsfield Street, Grey  Lynn,  both  held  in  the  registered  ownership  of  Dalip  Kumar  Rupa,  Sarda Devi Rupa, and Rewa Kara Jaga Rupa.

[2]                 Regrettably, while the District Court default judgment dated 11 August 2020 specified the amounts owed in respect of each property, the District Court certificate of judgment dated 1 October 2020, upon which the Council’s application to this Court was based, did not. It specified an undivided sum owed. Relying upon the Council’s application , the High Court Registry:

(a)removed the District Court judgment into this Court under s 120 of the District Court Act 2016;

(b)entered a Final Judgment dated 22 October 2020; and

(c)issued a Final Charging Order on Land dated 11 November 2020.

[3]                 The Final Judgment was similarly undivided, and the Final Charging Order was accordingly in error, purporting to charge the Wellington Street property with the entire undivided judgment debt.

[4]The Council now applies for judgment by default, granting orders:

(a)amending the Final Charging Order to reflect the separate District Court judgment amounts, or recalling, rescinding or vacating the Final Charging Order; and

(b)recalling, rescinding or vacating the judgment in this Court in the entire sum; and

(c)setting aside the removal to the High Court and transferring the proceeding to the District Court under s 122 of the District Court Act 2016.

[5]                 The Council served its application, on 9 February 2024 upon Dalip Kumar Rupa personally, and on 17 April 2024 in accordance with the orders made by Robinson J for substituted service of Sarda Devi Rupa and Rewa Kara Jaga Rupa. There has been no response from any of the defendants, including at this morning’s mention of the application in the duty Judge list.

[6]                 For the Council, Mr  Cotter  submits  that  the  better  course  is  for  the  Final Charging Order to be recalled as issued in error, and reissued (should the Council continue to seek enforcement via this Court) once the District Court judgment is rectified. The District Court may not rectify its judgment until this proceeding is re-removed into the District Court under s 122 of the District Court Act. I agree with Mr Cotter that is the better course.

[7]I therefore grant judgment as follows:

(a)recalling the Final Judgment dated 22 October 2020 and the Final Charging Order dated 11 November 2020; and

(b)removing this proceeding into the District Court under s 122 of the District Court Act.

Johnstone J