Golzarpoor v Mullany
[2024] NZHC 1616
•19 June 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-1266
[2024] NZHC 1616
UNDER The Contract and Commercial Law Act 2017 BETWEEN
HAMED GOLZARPOOR
Plaintiff
AND
KEVIN JOHN MULLANY
Defendant
Hearing: 17 June 2024 Counsel:
Plaintiff in person
G Boggiatto for the Defendant
Judgment:
19 June 2024
JUDGMENT OF ASSOCIATE JUDGE BRITTAIN
This judgment was delivered by me on 19 June 2024 at 3 pm.
Pursuant to Rule 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar
Solicitors/Counsel:
George Bogiatto, Auckland
GOLZARPOOR v MULLANY [2024] NZHC 1616 [19 June 2024]
Introduction
[1] On 13 January 2021, the plaintiff, Hamed Golzarpoor (Mr Golzarpoor) and his wife, Mekyal Akhlaghi Amiri (Ms Amiri), signed a contract with KVN Builders 2020 Limited, now in liquidation (KVN), engaging KVN to construct a house for them.
[2] On 25 January 2024, the shareholders of KVN passed a resolution appointing a liquidator. Unfortunately for Mr Golzarpoor and Ms Amiri, the construction of their home was incomplete at the time. They seek to recover losses that they have suffered as a result.
[3] Mr Golzarpoor has filed a statement of claim in this proceeding dated 8 June 2023. Mr Golzarpoor is self-represented, and he candidly acknowledges that he does not fully understand the procedural requirements that he must comply with.
[4] The statement of claim contains a narrative of the facts according to Mr Golzarpoor, and appears to raise only one cause of action, for breach of contract. The only named defendant is Kevin Mullany, a director of KVN. However, the pleaded narrative of facts refers to both Mr Mullany and KVN as “the contractor”.
[5] Mr Mullany has applied to strike out the statement of claim, primarily on two grounds:
(a)it does not comply with the formalities required of a pleading, prescribed by the High Court Rules 2016 (HCR); and
(b)the contract was between Mr Golzarpoor & Ms Amiri and KVN, and Mr Mullany was not a contracting party.
[6] Mr Golzarpoor filed written submissions in opposition to the application for strikeout. The cover sheet of those submissions names both Mr Golzarpoor and Ms Amiri as plaintiffs and both Mr Mullaney and KVN as defendants. At the hearing, Mr Golzarpoor confirmed that he seeks orders joining Ms Amiri as a plaintiff, and KVN as a defendant.
Discussion
[7] For Mr Mullany, Mr Boggiatto submitted that the statement of claim does not comply with the technical requirements for margin width and cover sheets in rr 5.5 and 5.7 to 5.11 of the HCR. Further, Mr Boggiatto submitted that the statement of claim does not comply with the following requirements in the HCR:
(a)division of the allegations of fact into separate numbered paragraphs, in breach of r 5.14;
(b)distinct matters are not stated separately, in breach of r 5.17;
(c)the statement of claim does not adequately show the general nature of the plaintiff’s claim to the relief sought, including sufficient particulars, in breach of r 5.26;
(d)a failure to adequately specify the relief sought, in breach of r 5.27.
[8] The statement of claim includes a table which clearly sets out the nature of the losses that are claimed, and the amounts sought. Otherwise, Mr Boggiatto’s technical criticisms of the statement of claim are well founded.
[9] More fundamentally, Mr Boggiatto submitted that the statement of claim does not disclose a cause of action against Mr Mullany, because he was not a party to the pleaded contract.
[10] Mr Golzarpoor has produced a copy of the contract. It is a standard form document produced by Registered Master Builders Association, with the project specific details added where appropriate. The contract names KVN Builders 2020 Limited as a party, defined as “the RMB”, and this party description is used throughout the contract. Mr Mullany is not named as a party to the contract. Mr Mullany signed the contract, but he did so “on behalf of the RMB”.
[11] Mr Golzarpoor has produced the tax invoice for the first deposit paid by Mr Golzarpoor and Ms Amiri under the contract. The invoice is dated 11 January 2021 and was issued by KVN.
[12] During the hearing, I discussed with Mr Golzarpoor the nature of the claim that he wishes to make against Mr Mullany. My understanding is that Mr Golzarpoor and Ms Amiri wish to pursue claims against Mr Mullany for breach of non-contractural duties allegedly owed by Mr Mullany to them.
[13] On the material before the Court, there is no basis for Mr Golzarpoor and Ms Amiri to bring a claim against Mr Mullany for breach of contract. Mr Mullany was not a contracting party.
[14] I explained to Mr Golzarpoor that his claim against KVN is effectively stayed by s 248(1)(c)(i) of the Companies Act 1993, as a result of KVN being put into liquidation. I advised Mr Golzarpoor to make contact with the liquidator with a view to lodging a claim in the liquidation.
[15] Mr Golzarpoor acknowledges that he would benefit from legal advice regarding any claims that may remain open to him against Mr Mullany. He intends to seek advice. This is an appropriate case for Mr Golzarpoor to be given a reasonable period of time to obtain legal advice, and to file an amended statement of claim if he wishes to proceed with alternative causes of action against Mr Mullany.
[16] Any amended statement of claim can also name Ms Amiri as a plaintiff, and no separate application is required to do so.
Orders
[17]The statement of claim dated 8 June 2023 is struck out.
[18] Mr Golzarpoor is granted leave to file an amended statement of claim against Mr Mullany, by 18 October 2024. An amended statement of claim may name Ms Amiri as a plaintiff.
[19] The proceeding is adjourned to the Chambers List on 31 October 2024 at 2.15 pm.
[20]Costs are reserved.
Associate Judge Brittain
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