Berry v Dryfoot Holdings Ltd

[2013] NZHC 2817

IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY

CIV-2013-483-45 [2013] NZHC 2817

BETWEEN  RAYMOND BRUCE BERRY Plaintiff

ANDDRYFOOT HOLDINGS LTD Defendant

Hearing:                   23 October 2013

Appearances:           J Gilbert and E J Unsworth for Plaintiff

J H Waugh for Defendant

Judgment:                23 October 2013

ORAL JUDGMENT OF ASSOCIATE JUDGE BELL

Solicitors:

Horsley Christie, Whanganui, for Plaintiff

Barltrop Graham (Lloyd Evans), Feilding, for Defendant

Counsel:

J H Waugh, Barrister, Whanganui

BERRY v DRYFOOT HOLDINGS LTD [2013] NZHC 2817 [23 October 2013]

[1]      Raymond Bruce Berry owns two blocks of farmland at Raetihi.   They are called Tods block and Chucks block.  In 2008 Mr Berry leased the blocks to Dryfoot Holdings Ltd under separate leases.  At that time Dryfoot Holdings Ltd ran a dairy farm close by Mr Berry’s blocks.  In 2009 Dryfoot Holdings Ltd ceased farming both blocks.

[2]      Mr Berry is now suing Dryfoot Holdings Ltd for losses. These losses are said to be for: a shortfall in rent when it re-let the blocks, unpaid rates falling due both before and after Dryfoot Holdings Ltd ceased occupation, grazing part of Tods block after Dryfoot ceased occupation, and the cost of repairs to a hay-shed.   The total claim is for $55,600.87.  Mr Berry has applied for summary judgment.

[3]      Mr Berry’s case is that the leases of both blocks remained in full force and effect until their expiry dates at the end of the dairy season in 2011.  The defendant, on the other hand, says that it ceased possession of the premises when the leases were surrendered in 2009.

A preliminary point

[4]      The amount of Mr Berry’s claim is some $55,000.  That sum is well within the civil jurisdiction of the District Court.   The District Court Rules now allow a plaintiff to seek summary judgment.  I queried why this proceeding had been brought in this court.   Mr Unsworth explained that in his experience summary judgment applications in the District Court do not operate smoothly and counsel prefer to bring summary judgment applications in this court.   Mr Waugh responded that plaintiffs sometimes see tactical advantages in applying for summary judgment in this court even though the sum is within the jurisdiction of the District Court.

[5]      For my part, a proceeding such as this seems to be readily amenable to a determination in the District Court.   It seems unnecessary for Mr Berry to have brought this proceeding in this court.

Summary judgment principles

[6]      Mr Waugh reminded me of the principles for summary judgment.  He cited from Krukziener v Hanover Finance:1

The principles are well settled.   The question on a summary judgment application is whether the defendant has no defence to the claim; that is, there is no real question to be tried.  The court must be left without any real doubt or uncertainty...  The onus is on the plaintiff and where its evidence is sufficient to show there is no defence the defendant will have to respond if the application is to be defeated...   The court will…