Jerard v Auckland Council - [2015] NZHC 1691

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7422 [2015] NZHC 1691

BETWEEN
KENNETH JAMES JERARD AND

LINDA IRENE LEADER Plaintiffs

AND

AUCKLAND COUNCIL First Defendant

BRYCE WARREN PAXTON and AMANDA SARAH PAXTON Second Defendants

Continued over page

Hearing: 16 July 2015

Appearances:

S J Ropati for Second Defendants (Applicants) G R Grant for the Plaintiffs (Respondents)

Judgment:

22 July 2015

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 22 July 2015 at 12.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: S J Ropati, Auckland
Rainey Law, Auckland

JERARD v AUCKLAND COUNCIL [2015] NZHC 1691 [22 July 2015]

ANDBROWN BROTHERS BUILDERS LIMITED
First Third Party
IAN HUTCHINSON CONSULTANTS LIMITED
Second Third Party
BRETT CONWAY BROWN Third Third Party
MATTHEW TICKLE Fourth Third Party
POLE SPECIALISTS LIMITED Fifth Third Party
DEAN HENSHAW Sixth Third Party
SHORE PLUMBING LIMITED Seventh Third Party

[1] The applicants, Mr and Mrs Paxton, apply to set aside a judgment given by Lang J on 10 October 2014 after a formal proof hearing on the grounds that they had a substantial defence, there has been a miscarriage of justice, and the respondents will not be prejudiced.1

[2] The applicants were the second defendants in claims brought by the respondents, Mr Jerard and Ms Leader, against the multiple defendants including the applicants, Auckland Council and various tradesmen. The claims related to defects the respondents had discovered in relation to a property situated at 12 Fairhaven Walk, Arkles Bay, which they purchased from the applicants in December 2005.

Facts

Procedural History

[3] The respondents commenced proceedings against the applicants on

17 November 2011 for breach of contract and negligence. The applicants instructed

Carole Smith to act as instructing solicitor and William McCartney as a barrister.

[4] The applicants filed a statement of defence in June 2012. The respondents filed amended statements of claim on 18 January 2013, 23 April 2013, 10 May 2013 and 4 October 2013. The applicants did not file an amended statement of defence.

[5] A hearing was set down for 6 October 2014. On 16 July 2014, the applicants instructed Mr McCartney to advise the Court and the other parties that they would not be attending the hearing, and to cease to work on their case. The respondents filed a fourth amended statement of claim on 19 September 2014.

[6] The hearing began on 6 October 2014. There was no appearance for the applicants. On 7 October the respondents reached a settlement with the other parties present at Court. The case therefore proceeded against the applicants alone by way
of formal proof. Lang J delivered a judgment on 10 October.

1 Jerard v Auckland Council [2014] NZHC 2493, (2014) 15 NZCPR 906.

Judgment of Lang J

[7] Lang J first set out some of the procedural history of the case noting that the respondents had only pursued the claim against the applicants in breach of contract.2
This claim was based on…

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: [2015] NZHC 1691
Decision Date: 22 July 2015

CaseChat Overview and Summary

The applicants, Mr and Mrs Paxton, sought to set aside a judgment entered against them in the proceedings between the respondents, Mr Jerard and Ms Leader, and multiple defendants including the applicants, Auckland Council and various tradesmen. The applicants had been found liable for breach of contract and negligence in relation to defects in a property the respondents had purchased from the applicants in December 2005. The applicants sought to set aside the judgment on the grounds that they had a substantial defence which had not been pleaded, there had been a miscarriage of justice, and the respondents would not be prejudiced. The applicants argued that the contract between the parties had been cancelled and the sale was governed by a new contract which contained a clause that any claims for damages would be filed in the Disputes Tribunal at North Shore. The court found that the applicants had not justifiably failed to defend the proceedings and that they did not have a substantial defence. The court held that the respondents would suffer undue prejudice if the judgment were set aside. Accordingly, the application was dismissed.

Orders