Brandon v Brandon HC Wanganui CIV-2010-483-315

[2010] NZHC 2376

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CIV-2010-483-315

BETWEEN  GARY DAVID BRANDON Plaintiff

ANDCHRISTINE COLINE BRANDON Defendant

Hearing:         8 December 2010

Appearances: G. Mason - Counsel for Plaintiff

G. Takarangi - Counsel for Defendant

Reasons for Decision:            8 December 2010

REASONS FOR DECISION OF ASSOCIATE JUDGE D.I. GENDALL

Solicitors:           Loughnans, Solicitors, PO Box 1257, Palmerston North 5301

Harvey Harris Nash, Lawyers, PO Box 3, Ohakune 5461

GD BRANDON V CC BRANDON HC WANG CIV-2010-483-315  8 December 2010

[1]      Before the Court today were the following:

(a)      An  “invitation”  or  application  by  the  defendant  to  this  Court  to transfer the present proceedings to the District Court on the basis that the   remedy   sought   by   the   plaintiff   is   for   an   amount   under

$200,000.00; and

(b)An application by the plaintiff for summary judgment against the defendant.

[2]      At the outset it was noted that the defendant would require leave to file and serve her Notice of Opposition to the present summary judgment application.   Mr Mason for the plaintiff indicated that there was no real objection from the plaintiff to leave being granted.

[3]      Accordingly, I granted leave to the defendant to file and serve out of time her defence to the plaintiff’s summary judgment application and any material in support. That is noted.

[4]      The next matter before the Court related to the defendant’s “invitation” or application to the Court to transfer the proceedings to the District Court, as they were within the jurisdiction of that Court.

[5]      On this aspect, Mr Mason for the plaintiff suggested that the appropriate course here was to follow the procedure adopted by Associate Judge Bell in Arranmore Developments Limited v Narayan, High Court, Auckland,  5 October

2010, CIV-2009-404-5439.  There, the High Court, in circumstances similar to the present, heard the plaintiff’s summary judgment application and then indicated that if this was determined to be unsuccessful the Court would consider transferring the proceeding to the District Court to determine matters in issue.

[6]      Before me, Mr Takarangi for the defendant confirmed that the defendant would agree to this course of action and for the plaintiff’s summary judgment application to be heard in this Court on a defended basis.  He noted that, of course,

time table orders would need to be made to enable the filing and service of the defendant’s signalled opposition to the summary judgment application and material in support.

[7]      In my view, this suggestion from Mr Mason to follow the procedure adopted by Associate Judge Bell in Arranmore is appropriate here particularly bearing in mind that the amount of the plaintiff’s present claim, although being within the District Court jurisdiction, is still substantial at about $145,000.00.

[8]      That said, the “invitation” from the defendant to this Court to transfer the proceedings now to the District Court is effectively held in abeyance and I confirm the following directions made earlier today:

(a)The plaintiff’s summary judgment application is set down for hearing in this Court at Wanganui at 1.00 pm on 24 February 2011 (2 hours allowed).

(b)The defendant’s opposition to this summary judgment application and any affidavit/s in support are to be filed and served within 10 working days of today.

(c)      The plaintiff is then to have a further 10 working days from that date to file and serve any reply affidavit/s.

(d)The  provisions  of  r  7.39  High  Court  Rules  as  to  submissions  in advance for the summary judgment hearing are to apply.

[9]      Costs were sought today by Mr Mason for the plaintiff for what he claimed was an unnecessary appearance.  In this regard, he claimed that the appearance was entirely wasted and matters could have been dealt with by memorandum if the defendant had properly turned her mind to these issues.  It is confirmed these costs are reserved to be dealt with on 24 February 2011.

‘Associate Judge D.I. Gendall’