Korea Resolution & Collection Coporation v Lee

[2013] NZHC 1207

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2012-409-001561 [2013] NZHC 1207

BETWEEN  KOREA RESOLUTION & COLLECTION CORPORATION Plaintiff

ANDHWE GOUNG LEE Defendant

Submissions by

Memoranda:

22 May 2013

Appearances:           G J Thwaite for Plaintiff

G D Jones for Defendant

Judgment:                24 May 2013

JUDGMENT OF ASSOCIATE JUDGE OSBORNE [as to extension of time for defence]

[1]      This Judgment deals with a request by the plaintiff for judgment by default and a request by the defendant for an extension of time to file a defence.

Background

[2]      The proceeding was issued on 24 July 2012.   Because the plaintiff was applying for summary judgment, the defendant did not file a defence.

[3]      The defendant filed opposition, including grounds stating that the defendant was not served with the proceeding, that there was no submission to jurisdiction in Korea, and that the quantum claimed by the plaintiff was excessive.

[4]      In April, the plaintiff filed an amended statement of claim.

KOREA RESOLUTION & COLLECTION CORPORATION v LEE [2013] NZHC 1207 [24 May 2013]

[5]      The  plaintiff’s  summary  judgment  application  was  heard  in  May  and  a judgment delivered on 6 May 2013.[1]   The Court was not satisfied that the defendant had been served with the proceeding or that the Korean Court had jurisdiction in relation to the claim against her.  The Court did not determine whether the quantum of the claim was arguably overstated.  The Court reserved costs with memoranda to be filed if necessary.

[1] Korea Resolution and Collections Corporation v Lee [2013] NZHC 985.

[6]      Counsel filed and served memoranda on 14 May 2013 and 21 May 2013 respectively. The Court gave judgment on costs on 22 May 2013.

A defence to the claim?

[7]      In the meantime, counsel for the defendant had overlooked r 12.13(1) High Court Rules.   That rule provides that, in the context of a summary judgment proceeding, the statement of defence (if not already filed) must be filed within 10 working days after the date on which the plaintiff’s application for judgment is dismissed in whole or in part.  The 10 working day period expired on 20 May 2013. The defendant had not filed her defence.  Through the combination of r 12.13(1) and r 15.7 the plaintiff was therefore entitled to have judgment sealed for the liquidated sums involved.

The request for judgment

[8]      By memorandum dated 21 May 2013 (filed on 22 May 2013) Mr Thwaite, for the plaintiff, submitted a default judgment for sealing.  An affidavit as to service of the proceeding upon the defendant was also filed.

[9]      Mr Jones, for the defendant, immediately filed a memorandum.  He explained that he had overlooked the relevant rules.  He stated that he was in a position to file a statement of defence by today, Friday 24 May 2013.  He requested an extension of time for the filing of the defence to today’s date, relying upon r 1.2 (as to the just, speedy, and inexpensive determination of a proceeding) and r 1.19 (imposing in the

Court a discretion to extend the time appointed by the rules for any step).

[10]     Mr Jones submitted that there was no prejudice caused to the plaintiff by the delay in this case as the Court has already determined that the defendant has an arguable defence.

[11]     Mr Thwaite filed a memorandum in reply.  Mr Thwaite submits (and I quote):

Defendant has chosen to ignore the Rules.  Defendant elected to take costs and Plaintiff has elected to take Judgment.   Defendant must take the consequences of her counsel’s decisions.

[12]     Mr Thwaite goes on to provide from the Bar information which he says the plaintiff has, which he says means that the defendant gave a false impression in her evidence.   Mr Thwaite proposes that the defendant should be first required to file evidence as to her passport.

Determination

[13]     Pursuant to r 1.19 High Court Rules, I extend the time appointed by the rules for the filing and service of the defendant’s statement of defence to Monday, 27 May

2013.

Reasons

[14]     The  defendant’s  failure  to  file  a  defence  appears  clearly  to  stem  from counsel’s overlooking of the requirement imposed by r 12.13(1).

[15]     The Court has no reason to doubt (although Mr Thwaite appears implicitly to reject) Mr Jones’s advice to the Court that the defence was not filed because counsel for the defendant overlooked the relevant rule.

[16]     In my own experience, this is far from the first time in which experienced counsel have overlooked the rule.

[17]     I further note that by r 12.13(2) it is provided:

Rule 12.12(1) overrides this rule.

[18]     Rule 12.12(1) in turn requires a Court on dismissing a summary judgment application to give directions as to the future conduct of the proceeding as may be appropriate.   That provision happened to have been overlooked in the summary judgment delivered on 6 May 2013.  The 6 May 2013 judgment therefore did not contain a direction along the lines of the Court’s standard practice whereby the proceeding is convened to a specific date for a case management conference and for the avoidance of doubt, the time for the filing of the defence is recorded to be in terms of r 12.13(1).  The focus of counsel in terms of the management of the file was therefore not directed by the judgment to matters of future conduct of the proceeding as is required under r 12.12(1).

[19]     Mr Jones’s submission as to the lack of prejudice through the delay because the lines of the defendant’s defence have already been considered in detail by the Court is unanswerable.   Significantly, in his memorandum in reply, Mr Thwaite while making various submissions did not challenge Mr Jones’s submission that there was no prejudice through the delay. There clearly is none.

[20]     The other matters of evidence on which Mr Thwaite embarked in his reply memorandum are not such as should inform this decision.

[21]     Mr Jones is correct in his suggestion that the objectives of “just, speedy, and inexpensive  determination  of  the  proceeding”  under  r  1.2  should  inform  this decision.   Were the plaintiff to obtain its intended default judgment, against the background of circumstances as I have summarised them, the defendant would have a straightforward path to the setting aside of the judgment under r 15.10 High Court Rules.  The far better and more just place for the plaintiff to explore the matters of evidence  which  Mr  Thwaite  touches  on  is  at  a  trial,  when  the  facts  can  be determined, rather than through an interlocutory process with the restrictions that such brings.

[22]     The interests of all parties in a just outcome can be best protected by the

Court’s now allocating a case management conference.

Next case management conference

[23]     I  adjourn  the  proceeding  to  a  case  management  conference  at  9.00  am, Thursday 30 May 2013 by telephone (Associate Judge Osborne).

[24]     That conference is convened for the primary purpose of allocating a trial date and making all interlocutory and pre-trial directions.

[25]     Counsel are to immediately confer with a view to agreeing all matters of discovery and inspection (to the extent they have not already been dealt with through the cooperation that is required of counsel) and any other interlocutory requirements. They  are  to  file  and  serve  by  28th   May  2013  either  a  joint  memorandum  or memoranda as to the needs of trial (including estimated duration of trial by reference to the names and numbers of witnesses to be called on each side, and pre-trial

directions).

Associate Judge Osborne

Solicitors:

Kenton Chambers Lawyers, Auckland Counsel: Gregory J Thwaite, Auckland Lane Neave, Christchurch