Hammond v Gash - [2024] NZHC 2446

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV 2017-463-000107

[2024] NZHC 2446

BETWEEN JOHN DAVID HAMMOND and NOELEEN MARGARET HAMMOND
Plaintiffs

AND

ANDREW WILLIAM GASH and JOY CHERIE GASH

Defendants

Hearing: 21 November 2024

Appearances:

Plaintiffs in person

D Sheeley and T Bielby for the Defendants

Judgment:

17 December 2024

JUDGMENT OF TAHANA J

This judgment was delivered by me on 17 December 2024 at 2.30pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Parties:
Tompkins Wake, Hamilton Copy to: the Plaintiffs

HAMMOND v GASH [2024] NZHC 2446 [17 December 2024]

Introduction

[1] The defendants apply under r 15.2 of the High Court Rules 2016 (the HCR) to dismiss the plaintiffs’ claim for want of prosecution because of the plaintiffs’ failure to take any steps in the proceeding from July 2020 until July 2024 when they confirmed to the Court that they wished to pursue their claim. The plaintiffs oppose.

[2] The plaintiffs are now self-represented. They seek leave under r 12.4(2) to apply for summary judgment in relation to their claim for non-payment of rates and insurance. The defendants oppose.

[3]I therefore need to consider:

(a)whether the plaintiffs’ claim should be struck out because of the delay in pursuing the claims; and

(b)whether it is appropriate to grant leave to the plaintiffs to apply for summary judgment given the time that has lapsed since the claim was filed.

Background

[4] The plaintiffs filed their claim in 2017. The initial claim sought an order for vacant possession of their farm property located at Putāruru. They had leased their farm to the defendants, Mr and Mrs Gash in 2008. The parties had signed a standard form of lease and there were no incidents until 2015, when the parties fell out over discussions about a new formal lease.

[5] The defendants had spent monies building a new underpass connecting two parts of the farm which they understood to be the basis for a new 15-year lease. They did not agree to give possession of the farm to the plaintiffs.

[6] The defendants filed a statement of defence, counterclaims and a summary judgment application. They deny the original lease was renewed to 31 May 2017 for a second three-year term or that they have been holding over. They rely on two

affirmative defences: that there is a new lease or there is an enforceable lease to which the doctrine of part-performance applies. The counterclaim relies on a breach of an agreement regarding the underpass and an entitlement to restitution.

[7] In 2018, the Court declined the defendants’ summary judgment application on the basis that there were disputed issues of material fact, and those facts could not be determined from affidavit evidence. The Court also noted that:1
Though the plaintiffs’ case certainly appears to have weaknesses, the defendants’ case, dependent as it is on a claim that there is an unwritten lease and part-performance, has the hallmarks of a…

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.

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Details

Case: [2024] NZHC 2446
Decision Date: 17 December 2024

CaseChat Overview and Summary

The High Court of New Zealand, Rotorua Registry, dealt with an application by the defendants, Andrew William Gash and Joy Cherie Gash, to dismiss the plaintiffs' claim for want of prosecution. The plaintiffs, John David Hammond and Noeleen Margaret Hammond, filed their claim in 2017 seeking vacant possession of their farm property leased to the defendants. The defendants opposed the dismissal application and the plaintiffs sought leave to apply for summary judgment. The court had to determine whether the plaintiffs' claim should be dismissed for inordinate and inexcusable delay and whether leave should be granted for the plaintiffs to apply for summary judgment. The court found that while the delay was inordinate and inexcusable, it did not result in serious prejudice to the defendants. Consequently, the application to strike out the claim was declined. The court also declined the plaintiffs' application for leave to apply for summary judgment, considering it would not expedite the resolution of the dispute and the claim had already been deemed unsuitable for summary judgment. The court set down a three-day hearing commencing on 5 May 2025, with specific directions for the filing of briefs of evidence, nominations for the common bundle, and opening submissions. Both parties were to bear their own costs.

Orders