George v Dilks - [2018] NZHC 435

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-2139 [2018] NZHC 435

BETWEEN
ARIANA CAILEEN GEORGE

First Plaintiff

RODNEY LEE TE WAKA TOTO HOLLAND

Second Plaintiff

AND

PAUL DILKS

Third Defendant

Hearing: 26 February 2018

Appearances:

R S Pidgeon for the Plaintiffs

D M O’Neill for the Third Defendant

Judgment:

26 February 2018

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Pidgeon Law (J M Pidgeon), Auckland, for the Plaintiffs
Garth O’Brien & Associates (G W O’Brien), Te Awamutu, for the Third Defendant

Copy for:
R S Pidgeon, Barrister, Auckland, for the Plaintiffs
D M O’Neill, Barrister, Hamilton, for the Third Defendant

GEORGE v DILKS [2018] NZHC 435 [26 February 2018]

[1] On 4 December 2015, the plaintiffs obtained judgment by default against Mr Dilks, the third defendant. They registered the judgment in the Federal Court of Australia under the Australian equivalent of the Trans-Tasman Proceedings Act 2010. The amount of the judgment registered in Australia was AUD$410,708.81. On 5 August 2017, a bankruptcy notice issued out of the Federal Court was served on Mr Dilks at his home at Calamvale, Brisbane, Queensland.

[2] On 8 September 2017, he applied to set aside the judgment of this court. His application is under r 15.10 of the High Court Rules 2016:

15.10 Judgment may be set aside or varied

Any judgment obtained by default under rule 15.7, 15.8, or 15.9 may be set aside or varied by the court on such terms as it thinks just, if it appears to the court that there has been, or may have been, a miscarriage of justice.

Mr Dilks says that the judgment of 4 December 2015 was obtained irregularly because he was never served with the proceeding. He also says that once the judgment came to his notice he acted promptly to have the judgment set aside and he has substantial grounds of defence. He also claims that the plaintiffs will not suffer irreparable injury if the judgment is set aside.

Background

[3] The background to the proceeding is set out in the formal proof judgment of Keane J of 4 December 2015.1 Ms George and Mr Holland were in a de facto relationship. That has now come to an end. They, with Mr Holland’s mother, owned a property at Weymouth, Auckland. It was subject to a first mortgage to the ANZ Bank. They had limited equity.

[4] At the start of 2007, both Ms George and Mr Holland were in employment. She worked as a teacher. In February 2007, she made two agreements with Sell Smart Biz Ltd. Under the first, she bought a licence to sell tourism advertising using touch

1 George v Dilks [2015] NZHC 3060 at [1]–[21].

screen electronic kiosks owned by Sell Smart. Under the second, she bought a franchise for $105,000 under which a $50,000 deposit was to be paid, with the balance to be paid over time. The ANZ Bank would not provide any financial…

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 George v Dilks

Details

AGLC: George v Dilks [2018] NZHC 435
Case: [2018] NZHC 435
Decision Date: 26 February 2018

CaseChat Overview and Summary

The case of George v Dilks [2018] NZHC 435 was heard by the High Court of New Zealand, Auckland Registry. The plaintiffs, Ariana Caileen George and Rodney Lee Te Waka Toto Holland, sought to enforce a judgment obtained against the third defendant, Paul Dilks, for misrepresentation, deceit, negligence, and breach of fiduciary duty in connection with a mortgage transaction. The central issue was whether the judgment obtained by default against Mr Dilks was irregular due to improper service of the proceedings, leading to a potential miscarriage of justice. Mr Dilks argued that he was never served with the proceeding and therefore the judgment was irregular and should be set aside. The court found that there was a significant conflict between the process server's affidavit and Mr Dilks' evidence. The weight of the evidence suggested that Mr Dilks was in Australia at the time of the alleged service, and he had no knowledge of the proceeding until served with a bankruptcy notice. The court concluded that the failure to serve Mr Dilks resulted in a miscarriage of justice, as he was deprived of the opportunity to defend the proceeding. Accordingly, the court exercised its discretion to set aside the judgment against Mr Dilks.

In summary, the High Court set aside the default judgment against Paul Dilks on the grounds that it was obtained irregularly due to improper service, leading to a miscarriage of justice. The court directed Mr Dilks to file a statement of defence within 25 working days and arranged for further case management before Associate Judge Sargisson. The plaintiffs were not entitled to costs due to Mr Holland's grant of legal aid, but the court directed the parties' counsel to agree on the amount of costs to be certificated if they could not reach an agreement themselves.

Orders