Body Corporate no 182563 v Garcia

[2024] NZHC 1646

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2024-412-058

[2024] NZHC 1646

UNDER

the Unit Titles Act 2010

IN THE MATTER

of a claim under section 74

BETWEEN

BODY CORPORATE NO. 182563

Plaintiff

AND

MARILYN SILVA GARCIA

Defendant

Hearing:	On the papers
Counsel:	C Baker and C J Robinson for Plaintiff
Judgment:	24 June 2024

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 24 June 2024 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:

BODY CORPORATE NO. 182563 v GARCIA [2024] NZHC 1646 [24 June 2024]

[1]                 This judgment concerns an application by the plaintiff to transfer a final judgment to the Auckland Registry for enforcement purposes.

[2]                 The plaintiff commenced a proceeding against the defendant in the Dunedin District Court. It did so believing that the defendant resided in Dunedin. It was discovered she resides in Auckland. After service, the defendant did not take any steps to  defend  the  proceeding  and  the  plaintiff   obtained  judgment  by  default  on    6 December 2023. The plaintiff has obtained a charging order over the interest of the defendant in a property at Browns Bay, Auckland.

[3]                 On the application of the plaintiff, the District Court issued a certificate of judgment to the plaintiff under s 120 of the District Court Act 2016, the effect of which is to remove the judgment into the High Court. Under s 120(5), on removal of the judgment it may be enforced as a judgment of the High Court.

[4]                 The plaintiff applies to have its judgment transferred to a more convenient registry, being the Auckland High Court.

[5]Rule 5.1(5) of the High Court Rules 2016 provides:

5.1      Identification of proper registry

...

(5)If it appears to a Judge, on application made, that a different registry  of the court would be more convenient to the parties, he or she may direct that the statement of claim or all documents be transferred to that registry and that registry becomes the proper registry.

[6]                 On receipt  of  the  plaintiff’s  application  Associate  Judge  Paulsen  issued  a minute asking counsel to address several issues, which they have now done. While counsel did not refer to any authority for the contention that r 5.1(5) applies after judgment, r 5.1(5) refers broadly to all documents  in a proceeding, which  includes  a final judgment. The interpretation also accords with the overriding objective of the High Court Rules to secure the just, speedy and inexpensive determination of proceedings and interlocutory applications before the Court.

[7]                 The defendant has not been served with the application to transfer the judgment to the Auckland Registry. I consider that service is not required as this is a routine application that is unlikely to be contested and can only benefit the defendant.1 Both parties are in Auckland. The plaintiff intends to enforce the judgment against the defendant’s Auckland property. The costs of such enforcement can be expected to be greater if conducted at a distance.

[8]                 The plaintiff has provided affidavit evidence as to why it will be more convenient to the parties for its judgment to be transferred to the Auckland High Court. The plaintiff intends to exercise its right to enforce the judgment by way of an order for sale over the defendant’s property by auction. The property will need to be marketed and the sale conducted through real estate agents  in Auckland.   It will    be more convenient and cost effective if the agents can liaise with the Auckland High Court Registry. In addition is the evidence that a Deputy Registrar of the Court would normally attend the auction. I am satisfied it is more convenient to the parties for the file to be transferred to the Auckland High Court Registry.

Result

[9]                 I direct the Registrar to seal the final judgment submitted by the plaintiff. Following sealing of the judgment it is to be transferred to the Auckland High Court Registry.

[10]Costs are reserved.

Associate Judge Lester

Solicitors:
Price Baker Berridge, Auckland

1      High Court Rules 2016, r 7.23(2)(a)(iii).