Ford v Strangwick - [2019] NZHC 2245

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-557

[2019] NZHC 2245

BETWEEN
PETER LESLIE FORD

Plaintiff

AND

ALYSSA AILENE STRANGWICK and TRAVIS BRADLEY STRANGWICK

Defendants

Hearing: 5 September 2019

Counsel:

Plaintiff in person

C J Nicholls for Defendants

Judgment:

6 September 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1] On 28 March 2019, Mr Ford (the plaintiff) obtained judgment by default against Alyssa and Travis Strangwick (the defendants) following a formal proof hearing before Johnston AJ.1 This had the effect of transferring title to a property in Lower Hutt (the property) to the plaintiff subject to a mortgage which had been placed on it by the defendants to obtain a loan. Since receiving title, the plaintiff has discharged that mortgage to prevent the mortgagee from exercising its power of sale. He has claimed the liquidated debt from the defendants in the District Court.

[2] The defendants now make an interlocutory application for an order under r 15.10 of the High Court Rules 2016 (HCR) setting aside the default judgment. They say there has been a miscarriage of justice because the default judgment was

1 Ford v Strangwick [2019] NZHC 614.

FORD v STRANGWICK & ANOR [2019] NZHC 2245 [6 September 2019]

irregularly obtained. They argue the Associate Judge lacked the jurisdiction to give a default judgment under r 15.9 and that they were not in fact served with the proceeding which prevented from defending the proceeding.

[3] The plaintiff opposes this application. A process server he contracted has deposed that he served Mrs Strangwick and the Court deemed both defendants as having been served.2 The plaintiff submits that it is unlikely that a different conclusion would be the result from a re-trial and that there would be irreparable injury caused to him from having the judgment set aside as he has already discharged the mortgage which the defendants had placed on it.

The history of the dispute to date

Background

[4] The plaintiff is the step-father and step-father-in-law of Alyssa and Travis Strangwick (respectively). Mrs Strangwick was born after her mother and the plaintiff separated and she came to live with him in Wellington for a year when she was 18 years old. She then moved to Melbourne, met Mr Strangwick, got married, and the couple have lived around Melbourne, Australia ever since.

[5] Prior to 15 April 2014, the plaintiff was the registered proprietor of the property in Lower Hutt that is the subject of this ownership dispute. It was previously the Ford family home but around a decade ago it was turned into a tenanted investment property from which the plaintiff obtains rental income. The mortgage over the property had been discharged by August 2013. The plaintiff is now retired. He has three sons. He lives in a property next to the one in dispute and two of his sons live in the one next to that. He owns both of those properties as well. There is…

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 Ford v Strangwick

Details

AGLC: Ford v Strangwick [2019] NZHC 2245
Case: [2019] NZHC 2245
Decision Date: 6 September 2019

CaseChat Overview and Summary

Peter Leslie Ford (the plaintiff) sued Alyssa Ailene Strangwick and Travis Bradley Strangwick (the defendants) to determine the ownership of a property in Lower Hutt (the property). The plaintiff obtained judgment by default after the defendants failed to defend the proceeding. The defendants applied to set aside the judgment by default. The application was heard by Churchman J in Wellington. The primary issue was whether the judgment by default was irregularly obtained and whether there had been a miscarriage of justice such that the judgment should be set aside. The defendants argued that they were not actually served with the proceeding and that a miscarriage of justice would result if they were prevented from defending the plaintiff's claim. The Court found that the defendants had an arguable case. The Court also found that the judgment by default was irregularly obtained as the Associate Judge did not have the jurisdiction to dispose of the matter in Chambers. The Court found that there was a risk of a miscarriage of justice if the judgment by default was not set aside. The Court set aside the judgment by default on the condition that the defendants do not deal with the property in any manner until final disposition of the proceeding.

Orders