Liberty Financial Limited v Partsch

[2023] NZHC 237

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-716

[2023] NZHC 237

BETWEEN

LIBERTY FINANCIAL LIMITED

Applicant

AND

EDWARD CARL PARTSCH and

SERAFINA PARTSCH as trustees of the Partsch Family Trust

First Respondents

EDWARD CARL PARTSCH
Second Respondent

SERAFINA PARTSCH

Third Respondent

Hearing:

7 February 2023

Appearances:

C Frost for Applicant

No appearance by or for Respondents

Judgment:

20 February 2023

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[1]                  This summary judgment application was called in the Associate Judge’s list on 7 February 2023. Ms Frost appeared for the plaintiff. There was no appearance by or for the respondents.

[2]                  Having heard from Ms Frost I was satisfied that the applicant was entitled to summary judgment in the terms sought in the prayer for relief in its statement of claim on the bases set out in its notice of application and the affidavit evidence before the Court.

LIBERTY FINANCIAL LIMITED v PARTSCH [2023] NZHC 237 [20 February 2023]

[3]                  However, having reviewed the file it seemed to me that the applicant had not proved service of the notice pursuant to s 119 of the Property Law Act 2004. Essentially, the evidence as to service came from an officer of the applicant, Liberty Financial Ltd, who simply asserted that the notice had been served on the respondents. It was not that officer who had served the documents. It was a service agent engaged by the applicant. The service agent’s report to the applicant was exhibited to the officer’s affidavit. That of course is hearsay evidence.

[4]                  In a case in which the applicant is seeking to take possession of a property owned and occupied by the respondents, it appeared to me that hearsay evidence of service of the seminal document giving rise to the right to take possession was not good enough. When I put this to Ms Frost she readily agreed. I adjourned the matter to enable her to provide proof of service.

[5]                  I now have a memorandum from Ms Frost accompanied by an affidavit sworn by the service agent, Mr Anthony Lowe, which confirms service of the Property Law Act notice (as recorded in his report referred to earlier).

[6]I am satisfied that the applicant is entitled to judgment.

[7]                  I enter judgment in the terms sought  in  paragraphs  4(a)–(e) inclusive  of  Ms Frost’s memorandum dated 3 February 2023.

This is a straight forward claim by a lender for recovery of loan monies pursuant to a loan agreement in respect of which the borrowers have defaulted. The proceeding was issued on 26  October  2022  and  the  originating  documentation  was  served  on  21 November 2022. The defendants have not entered a defence or filed and served a notice of opposition to the plaintiff’s application for summary judgment. The originating documentation is in order.

[8]I enter judgment for the plaintiff in the terms set out in para 4 of Ms Frost’s

memorandum dated 3 February 2023.

Associate Judge Johnston

Solicitors:

Tompkins Wake, Hamilton for Applicant