Heritage Heights Limited v Sinclair Bros Building Limited

[2013] NZHC 772

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV-2009-425-000137 [2013] NZHC 772

BETWEEN  HERITAGE HEIGHTS LIMITED Plaintiff

ANDSINCLAIR BROS BUILDING LIMITED First Defendant

ANDG J SINCLAIR Second Defendant

ANDS L SINCLAIR Third Defendant

AND  INVERCARGILL ENGINEERING CO.

LIMITED

First Third Party

ANDD T ERSKINE Second Third Party

Hearing:         16 April 2013 (On the papers)

Judgment:      16 April 2013

JUDGMENT NO. 2 OF FOGARTY J

[1]      On 28 May 2012 in a reserved judgment, I gave judgment for the plaintiffs against the first, second and third defendants.

[2]      Mr J G French, who appeared as counsel for the plaintiff, the first third party and the second third party, has submitted for sealing a judgment against the defendants in accord with my judgment of 28 May 2012, and for judgment for the

first and second third parties against the first, second and third defendants.

HERITAGE HEIGHTS LTD V SINCLAIR BROS BUILDING LTD & Ors HC INV CIV-2009-425-000137 [16

April 2013]

[3]      In context, it effectively invites a recall of the judgment.   The Court has power to recall a judgment before it is sealed to correct mistakes.  There is an error in the record of appearances.  Presently, it records Mr French appearing for the first third party and the second third party, and advises no appearance for the plaintiff. Mr French did appear for the plaintiff.  I correct the appearances, so as to read “J G French for Plaintiff, First Third Party and Second Third Party”.

[4]      Second, in his written “OPENING FOR PLAINTIFF AND THIRD PARTIES MONDAY 30 APRIL 2012”, the plaintiff sought judgment dismissing the counterclaim by the defendant against the plaintiff (2.3), and in the next paragraph

(2.4) sought judgment against the third parties, dismissing those claims.

[5]      By oversight, the reserved judgment omitted to grant those remedies.  I am satisfied the plaintiff was entitled to them, because the defendants and third parties

did not defend the claim.

[6]      I have noticed also that the paragraph numbers of the judgment move from [59] to [61].  This is a numbering error.  The judgment of 28 May is to be amended by correcting the number sequence and deleting paragraph [64], as originally numbered, and substituting the following two paragraphs:

[63]      The defendants filed a defence and a counterclaim.  They also issued third party claims against Invercargill Engineering Co Limited and Mr Erskine.  By virtue of the non-appearance of the defendants to pursue these claims, the plaintiff is entitled to judgment against the defendants dismissing the counterclaim, and the third parties are entitled to judgment dismissing the third party claims.

[64]     The plaintiff and the third parties are entitled to costs on a 2B basis against the first, second and third defendants, such costs totalling $84,269.72 for the plaintiffs, and $3,760.00 for the third parties, as per the schedule attached to the memorandum filed in support of the judgment for sealing at the Invercargill Registry on 5 March 2013.

Solicitors:

French Burt Partners, PO Box 358, Invercargill

Copy to:

Ward Adams Bryan-Lamb, PO Box 32, Invercargill