Kivits v Draper - [2016] NZHC 1961

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CIV-2015-488-68 [2016] NZHC 1961

BETWEEN
CORNELIUS KIVITS AND

HUBERTINE KIVITS Plaintiffs

AND

ROBERT EDWARD DRAPER AND CYNTHIA GLADYS DRAPER

First Defendants

BURTON & CO Second Defendant

Hearing: 15 August 2016

Appearances:

J Strauss for the Plaintiffs
D G Collecutt for the First Defendants
Appearance excused for the Second Defendant

Judgment:

23 August 2016

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on 23 August 2016 at 11:00am
pursuant to Rule 11.5 of the High Court Rules

…………………………………………………….
Registrar/Deputy Registrar

Solicitors:
North Harbour Law (N du Toit), Orewa, for Plaintiffs
Carson Fox Legal (M Carson), Auckland, for First Defendants
Keegan Alexander (P Napier), Auckland, for Second Defendant
Counsel:
J Strauss, Auckland, for Plaintiffs
D G Collecutt, Auckland, for First Defendants

KIVITS AND KIVITS v DRAPER AND DRAPER [2016] NZHC 1961 [23 August 2016]

[1] On 5 November 2015 the plaintiffs, the Kivits, obtained judgment by default against the Drapers, the first defendants, for $1,447,142.94 plus interest on
$450,000.00 at 20.5 per cent per annum from 18 September 2010 until judgment, plus costs of $10,431.86. On 23 May 2016 the Drapers applied to set aside the default judgment.

Judgment regularly obtained

[2] The Drapers accept that the Kivits obtained judgment by default against them regularly, but it is necessary to explain that further. The Kivits began this proceeding on 17 June 2015. The second defendants, a law firm, applied for summary judgment. On 24 July 2015 Mrs Draper swore an affidavit in support of the summary judgment application. She must therefore have been aware of the proceeding then. She swore a further affidavit in support of the application on
29 September 2015. On 17 August 2015 the Kivits’ process servers served Mr Draper, but not Mrs Draper. The Kivits applied for substituted service on Mrs Draper. They sought an order under r 6.8 of the High Court Rules that she be treated as having been served on the basis that she was already aware of the proceeding. I directed that time for Mrs Draper to file a statement of defence should not run from 17 August 2015 (when her husband was served) but from when the Kivits informed her afresh of the proceeding. I directed the Kivits’ lawyers to write to Mrs Draper at her home in Glenbervie, sending a copy of the proceeding and a copy of my minute. The time for filing a statement of defence would run from the time when, in the ordinary course of post, the documents would reach that address. Mrs Draper sent a statement of defence to the court by 12 October 2015. That was within time but she did not pay the filing fee and did not serve the Kivits. On
27 October 2015 the Kivits presented for sealing a judgment by default against the Drapers. It was sealed on 5 November 2015. Mrs Draper wrote to the court complaining about the entry of judgment. I ruled that she…

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.

Keep reading for free

Create a free CaseChat account to read Kivits v Draper and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2016] NZHC 1961
Decision Date: 23 August 2016

CaseChat Overview and Summary

The High Court of New Zealand heard an application by Robert and Cynthia Draper to set aside a default judgment obtained against them by Cornelius and Hubertine Kivits. The Kivits had been awarded $1,447,142.94 plus interest and costs, which the Drapers contended was overstated. The central issues before the court were whether the Drapers had a substantial ground of defence, if the delay in applying to set aside the judgment was reasonably explained, and if setting aside the judgment would cause irreparable injury to the Kivits.

The court found that the Drapers had arguable defences based on part payment and limitation. The Drapers had made payments towards the debt, and the court accepted that these payments could be considered part payments under the Limitation Act 1950. Additionally, the Drapers argued that the statute of limitations had expired on certain claims, reducing the amount they owed. The court concluded that while the Drapers' delay in filing their defence was not justified, it was not so substantial as to preclude setting aside the judgment.

The court also considered whether setting aside the judgment would cause irreparable injury to the Kivits. The Drapers' lack of cooperation with the court raised concerns about potential prejudice if the judgment was set aside. However, the court found that appropriate directions could mitigate this risk.

The court decided to set aside the judgment and ordered a telephone conference to address the outstanding issues between the parties, including the amount owed by the Drapers. The court directed that if the Drapers complied with certain conditions, including providing documents for inspection, the judgment would be amended to reflect the reduced amount owed. The court also made no order for costs on the application to set aside the judgment.

Orders