Audio Essentials Limited v Tripathi - [2018] NZHC 3425

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2016-004-616

[2018] NZHC 3425

BETWEEN
AUDIO ESSENTIALS LIMITED

Plaintiff

AND

URMANG TRIPATHI

First Defendant

VARUN CHAWALA
Second Defendant

VIKAS ROHILLA

Third Defendant

Hearing: 23 August 2018

Counsel:

K J Crossland for Plaintiff M J Norris for Defendants

Judgment:

20 December 2018

JUDGMENT OF DUFFY J

This judgment was delivered by me on 20 December 2018 at 11 am pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
Shieff Angland, Auckland Kidd Legal, Auckland

AUDIO ESSENTIALS LTD v TRIPATHI & ORS [2018] NZHC 3425 [20 December 2018]

[1] Audio Essentials Limited (Audio Essentials) commenced this proceeding against Mr Tripathi and two other defendants. They in turn filed statements of defence and later a counterclaim against Audio Essentials.

[2] On 23 November 2017 Associate Judge Christiansen entered summary judgment upon Audio Essential’s claim against the defendants.1 The Associate Judge also struck out the defendant’s counterclaim, finding that it could not succeed.2

[3] Mr Tripathi now wants to review Christiansen AJ’s decisions in this Court, pursuant to s 26P(1) of the now-repealed Judicature Act 1908 and he seeks leave to adduce fresh evidence in support of the counterclaims. Mr Tripathi also seeks a stay of proceedings in relation to the Associate Judge’s decisions.

[4] The key issue is whether this Court has jurisdiction to hear and determine the review.

Procedural history

[5] Some understanding of the procedural history is required. On 5 May 2016, Audio Essentials filed a statement of claim against the defendants in the District Court. The claim related to unpaid rent under a deed of lease. A statement of defence was filed. Then on 29 May 2017, the defendants filed an amended statement of defence and counterclaim in the District Court. The amount claimed in the counterclaim meant that the proceeding had to be transferred to the High Court. This took place on 29 June 2017.

[6] On 6 July 2017, Audi Essentials replied to the defence and the counterclaim. It sought leave to apply for summary judgment on the basis that the counterclaim could not succeed. The application it filed also sought orders striking out the statement of claim

[7] The application was heard before Christiansen AJ on 13 November 2017. The judgment was delivered on 23 November 2017. In short, Christiansen AJ found that

1 Audio Essentials Ltd v Tripathi [2017] NZHC 2864.
2 At [85]

the defendants’ counterclaim could not succeed and without the counterclaim the defendants had no arguable defence to Audio Essentials’ claim. This led to the Associate Judge entering summary judgment for Audio Essentials. He also struck out the counterclaim.

[8] At 4:57 pm on 21 December 2017, Mr Tripathi emailed the Court of Appeal Registry, purporting to file an appeal of Christiansen AJ’s decision pursuant to s 26P(2) of the Judicature Act 1908. This was the final day to file an appeal in time

[9] Unfortunately for Mr Tripathi,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Audio Essentials Limited v Tripathi

Details

AGLC: Audio Essentials Limited v Tripathi [2018] NZHC 3425
Case: [2018] NZHC 3425
Decision Date: 20 December 2018

CaseChat Overview and Summary

Audio Essentials Limited commenced proceedings against the defendants, who filed a statement of defence and a counterclaim in the District Court. The counterclaim resulted in the proceeding being transferred to the High Court, where Associate Judge Christiansen entered summary judgment in favour of Audio Essentials and struck out the counterclaim. Urmang Tripathi, one of the defendants, sought to review the Associate Judge's decisions, including the summary judgment, the striking out of the counterclaim, and the dismissal of his counterclaim. The court had to determine whether it had jurisdiction to hear and determine the review, particularly in light of the repeal of the Judicature Act 1908 and its replacement by the Senior Courts Act 2016. The court found that the transitional provisions of the Senior Courts Act applied to the proceeding, which was pending before 1 March 2017, and that the proceeding remained subject to the Judicature Act and the former High Court Rules. The court concluded that any challenge to the summary judgment had to be brought by way of appeal to the Court of Appeal, whereas the review of the striking out of the counterclaim was within the court's jurisdiction. The court dismissed the review of the striking out of the counterclaim as it found that the counterclaim had no prospect of success due to the failure to plead properly the essential elements of claims in negligence or contract. The court also dismissed the applications to stay Audio Essentials' proceeding and for Mr Tripathi to be given leave to adduce new evidence to support the counterclaim.

Orders