Grindlay v Memelink - [2015] NZHC 1135

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2014-485-11497 [2015] NZHC 1135

BETWEEN
MALCOLM GRINDLAY AND

ROBYN GRINDLAY Appellants

AND

HARRY MEMELINK AND

NEILL HAMILTON AS TRUSTEES OF THE LINK TRUST NO 1

Respondents

Hearing: 25 May 2015

Counsel:

K I Jefferies for Appellants

Respondent (Mr Memelink) in Person (together with K Terpstra as McKenzie Friend)

Judgment:

26 May 2015

JUDGMENT OF SIMON FRANCE J

[1] The respondents obtained a default judgment in respect of claim brought for non payment of rent owed by the appellants pursuant to a lease agreement. The appellants applied to have the default judgment set aside. They succeeded, but the conditions imposed required part of the judgment sum to be paid to the defendants
by a certain date, and the balance to be paid into court by the same date.1 The

appellants appeal the conditions.

1 Memelink v M and R Grindlay CIV 2013-096-000520 DC Hutt Valley, 3 November 2014, per
Judge Touhy.

GRINDLAY v MEMELINK [2015] NZHC 1135 [26 May 2015]

Background facts

[2] The appellants purchased a scrap metal business from the respondents.2 At the same time they entered into a lease of premises in Seaview Road, Lower Hutt. That agreement was to take effect from 1 May 2013, although Mr and Mrs Grindlay were already in possession. Mr and Mrs Grindlay remained in possession until they left on 17 November 2013, having cancelled the lease. It is common ground that
$2,600, covering the period of occupation prior to 1 May, was paid.

[3] The statement of claim on which the default judgment was based claimed no payments were thereafter made under the lease which ran from 1 May. The plaintiffs claimed the outstanding rental payments. No defence was filed and the plaintiffs sought judgment by default. This was granted but was limited to the appellants’ period of occupation. The Judge declined to grant judgment for any amounts said to be owing subsequent to the appellants’ purported cancellation of the lease.

Judgment under appeal

[4] Mr and Mrs Grindlay applied to have the default judgment set aside.

[5] Concerning the reason for no defence having been filed, an affidavit from their lawyer was provided. The lawyer accepted responsibility for overlooking the filing of the defence.

[6] Concerning possible defences, Mr Grindlay filed an affidavit. In it he claimed:

(a) to have made cash payments of $17,980;

(b)to have valid grievances about the landlord’s compliance with its responsibilities under the lease;

(c) that Mrs Grindlay was not a signatory to the lease and could not be held responsible.

2 The parties are not exactly the same but the description suffices for present purposes.

[7] The District Court noted there were grounds for scepticism over the claim to having paid $17,980, but placed weight on the fact that Mr Grindlay had sworn an affidavit asserting payment. (Mr Memelink had done likewise, denying receipt). His Honour noted that no viable defence had, however, been identified concerning the balance of the money due under the…

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 Grindlay v Memelink

Details

AGLC: Grindlay v Memelink [2015] NZHC 1135
Case: [2015] NZHC 1135
Decision Date: 26 May 2015

CaseChat Overview and Summary

In Grindlay v Memelink, the appellants, Malcolm and Robyn Grindlay, appealed against the conditions imposed by the District Court when setting aside a default judgment that the respondents, Harry Memelink and Neill Hamilton as trustees of the Link Trust No 1, had obtained against them. The respondents had successfully claimed for unpaid rent pursuant to a lease agreement. The appellants sought to set aside the default judgment, but the District Court imposed conditions requiring the appellants to pay part of the judgment sum to the respondents and the balance into court within 21 days. The appellants appealed against these conditions. The High Court held that the appellants' application to set aside the default judgment should not have succeeded as they had not satisfied the usual tests for such an application. The Court found that the appellants' evidence concerning payment of part of the claimed amount was inadequate and speculative. The Court did, however, find that Robyn Grindlay had a plainly arguable defence to the claim, and accordingly her appeal was allowed and the default judgment against her was set aside. Malcolm Grindlay's appeal was dismissed, but the time for meeting the conditions was varied to 14 days from the date of the judgment. The respondents were not entitled to an award of costs.

The primary legal issue before the Court was whether the District Court's conditions for setting aside the default judgment were appropriate. The Court found that the appellants had not satisfied the usual tests for setting aside a default judgment, and that the conditions set by the District Court were appropriate given the circumstances of the case. The Court found that the appellants had not provided adequate evidence of payment of the claimed amount, and that Robyn Grindlay had a plainly arguable defence to the claim. Accordingly, the Court allowed Robyn Grindlay's appeal and set aside the default judgment against her. The Court dismissed Malcolm Grindlay's appeal, but varied the time for meeting the conditions to 14 days from the date of the judgment.

The Court found that the appellants had not satisfied the usual tests for setting aside a default judgment. The Court found that the appellants' evidence concerning payment of part of the claimed amount was inadequate and speculative, and that there was no evidence of irreparable harm to the appellants if the judgment debt was not set aside. The Court found that the appellants' lawyer had accepted responsibility for overlooking the filing of a defence, and that the appellants had not provided any viable defence concerning the balance of the money due under the lease. The Court found that the conditions set by the District Court reflected a similar underlying conclusion, and that the appropriate outcome given the Court's view of the merits was to retain the conditions with an adjusted period of 14 days from the date of the judgment to meet them. The Court found that Robyn Grindlay had a plainly arguable defence to the claim, and accordingly her appeal was allowed and the default judgment against her was set aside.

The Court allowed Robyn Grindlay's appeal and set aside the default judgment against her, with no alteration to the value of the cost judgments in the lower court, although they will be payable only by Malcolm Grindlay. The conduct of the proceedings by the defendants/appellants means that no costs order should be made in favour of Robyn Grindlay. The Court dismissed Malcolm Grindlay's appeal, but varied the time for meeting the conditions to 14 days from the date of the judgment. The respondents were not entitled to an award of costs, but reasonable disbursements, to be fixed by the Registrar, may be claimed.

Orders