Borg v 9 Chamberlain Road Limited - [2022] NZHC 281

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-530

[2022] NZHC 281

BETWEEN
GEORGE JOSEPH BORG and ROSEMARY CLAIRE BORG

First Plaintiffs

RAYMOND BRUCE CHAPMAN MOORE and GLENYS DOROTHY MOORE
Second Plaintiffs

(Plaintiffs continued over page)

AND

9 CHAMBERLAIN ROAD LIMITED

First Defendant

ROSS DALLIMORE

Second Defendant

Hearing: 21 February 2022

Appearances:

MJF Taylor and J Trezise for the Plaintiffs D W Grove for the Defendants

Judgment:

25 February 2022

JUDGMENT OF HINTON J

This judgment was delivered by me on Friday 25 February 2022 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:…………………………

Counsel/Solicitors:
Russell McVeagh, Auckland.
D W Grove, Barrister, Auckland Julie Xu Lawyers, Newmarket

BORG v 9 CHAMBERLAIN ROAD LIMITED [2022] NZHC 281 [25 February 2022]

ADAM JOHN KERNOT and HEATHER FRANCES BRONWYN BELL

Third Plaintiffs

XUNJUN LOW
Fourth Plaintiff
ANTHONY JAMES SPIERS, JOANNE MAREE WILLIAMS and DALLAS WOODS

Fifth Plaintiffs

ARUN ANANAD KUMAR and SURILA DEVI
Sixth Plaintiffs
GARY DAVID GRAHAM MORRIS
Seventh Plaintiff
LISA GAYE WALKER and JEANNINE ELLEN WALKER
Eighth Plaintiffs
TANIKA KOHLI and AMIT KOHLI
Nineth Plaintiffs
XIOWEI JI and MAN QIN

Tenth Plaintiffs

MIAO SHANG
Eleventh Plaintiff

Introduction

[1] Consequent upon an unless order taking effect, Associate Judge Bell ordered that this matter proceed on an undefended basis. The defendants have applied for leave to file statements of defence out of time. They also seek orders granting leave to issue third party notices and consolidating this proceeding with a parallel proceeding CIV-2021-404-537 (537).

[2]The key issue is over the application for leave to file defences.

Background

[3] The dispute relates to excavation earthworks performed round 2015 in respect of which there were two slips, one in May 2015 and the second in May 2016.

[4] The plaintiffs filed this proceeding on 26 March 2021 pleading nuisance and negligence on the part of the defendants, being the developer and the project manager in relation to the 2015 works.1 The defendants were served on 8 April 2021.

[5] The defendants sought extensions of time from the plaintiffs for filing of statements of defence, which were agreed, amongst other things because of COVID- 19 lockdowns.

[6] On 4 June and 6 June 2021 the defendants filed statements of defence. These documents were non-compliant. They did not plead to the statement of claim. But they did disclose the essence of the defences, arguably in greater detail than compliant statements of defence would. Bell AJ observed that the documents filed could meet the requirements for initial disclosure.

[7] The non-compliant “statements of defence” were prepared and filed by Mr Dallimore who is not a lawyer and was not eligible to represent the first defendant, 9 Chamberlain Road Limited (9CRL). That was made clear to him and 9CRL at or around the time the documents were filed.

1 The parallel proceeding (537) was filed on 24 March 2021. I refer to it again later.

[8] On 16 June 2021 the plaintiffs applied…

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 Borg v 9 Chamberlain Road Limited

Details

AGLC: Borg v 9 Chamberlain Road Limited [2022] NZHC 281
Case: [2022] NZHC 281
Decision Date: 25 February 2022

CaseChat Overview and Summary

The case of Borg v 9 Chamberlain Road Limited involved a legal dispute over excavation earthworks that resulted in two slips in 2015. The plaintiffs, including George Joseph Borg and Rosemary Claire Borg, filed a proceeding against the defendants, 9 Chamberlain Road Limited and Ross Dallimore, alleging nuisance and negligence. The defendants failed to file compliant statements of defence, leading to an unless order that required them to file compliant defences or face formal proof. When the defendants failed to comply, the plaintiffs were allowed to proceed by default. The defendants later applied for leave to file defences and issue third-party notices. The key issue was whether the defendants should be granted leave to file defences despite the delay.

The court considered the principles of relief from the consequences of an unless order, focusing on whether there would be a miscarriage of justice if judgment by default was entered. The court found that the defendants had a substantial ground of defence, although it was not fully evidenced. The delay in filing compliant defences was not reasonably explained, but the court noted that the delay was not the worst it had encountered. The plaintiffs would not suffer irreparable injury if leave to defend was belatedly granted, although the court acknowledged the increased stress and anxiety caused by the defendants' default. The court also considered other relevant factors, including the substantial amount at stake and the existence of a parallel proceeding with the same issues. Weighing these factors, the court concluded that there would be a miscarriage of justice if judgment by default was entered.

The court granted the defendants leave to file statements of defence and issue third-party notices on certain conditions. The defendants were required to pay costs on a 2B scale for specific steps and the plaintiffs' wasted costs incurred between certain dates. The matter was to be listed along with the parallel proceeding for further case management. The court also reserved leave for both parties to make further applications and directed the Registrar to refund the filing fee for the formal proof hearing. No costs were ordered in respect of the present application.

Orders