McLellan v Springvale Central Water Co Limited - [2016] NZHC 1128

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CIV-2013-412-000468 [2016] NZHC 1128

BETWEEN
SHAUN MCLELLAN

Plaintiff

AND

SPRINGVALE CENTRAL WATER CO LIMITED

Defendant

Hearing: 26 May 2016

Appearances:

D J More for Plaintiff
J E Bayley for Defendant

Judgment:

30 May 2016

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1] The defendant (Springvale) applies for an order dismissing this proceeding on the ground that the plaintiff (Mr McLellan) has not complied with orders of this court to pay two sums by way of costs, $4,331 on 14 October 2014, and $6,136.50 on 18 May 2015. Both were adverse costs awards on interlocutory applications. The former was an award of costs on an application by Springvale to strike out this proceeding as a result of Mr McLellan’s failure to pay an earlier costs award. The plaintiff (Mr McLellan) asks that the case be listed for formal proof as Springvale has not filed a statement of defence.

Listing for formal proof

[2] On 19 May 2014 the Court dismissed an application by Mr McLellan for summary judgment and made timetabling directions which included a direction that a statement of defence was to be filed by 13 June 2014. However, by a minute dated
18 June 2014 the Court suspended the timetable pending resolution of a security for costs application which had then been made. Although that application was decided
on 17 July 2014, the Court has not at any point since reinstated timetable directions.

MCLELLAN v SPRINGVALE CENTRAL WATER CO LTD [2016] NZHC 1128 [30 May 2016]

Therefore Springvale is not currently in breach of any order to file and serve a statement of defence.

[3]      Rule 12.13 provides that on dismissal of an application by a plaintiff for summary judgment a statement of defence of a defendant must be filed within
10 working days of the application being dismissed. Rule 12.12 overrides this rule and provides that on dismissal of an application for judgment the Court must give directions on the future conduct of the proceedings, as may be appropriate.   The directions made on 19 May 2014 were given under r 12.12 but then suspended. Rule
12.13 therefore applies. Springvale has not complied with the time limit specified. I note that the learned authors of McGechan observe that where an application for summary judgment has been dismissed and a defendant has not filed a statement of defence either at the time of filing a notice of opposition, under r 12.10, or within 30 days of the dismissal of summary judgment, there does not seem to be any reason
why judgment by default cannot be entered.1    They note that this practice was

endorsed in Alexander Crescent (No 1) Ltd v Taylor.2 Similarly I do not see any reason why a plaintiff’s case cannot be proved by formal proof in this circumstance, if it is not a claim in respect of which judgment may be entered by default. To interpret the rules differently would leave a plaintiff in a position where it could…

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: [2016] NZHC 1128
Decision Date: 30 May 2016

CaseChat Overview and Summary

Springvale Central Water Co Limited applied to dismiss Shaun McLellan’s proceeding for failure to pay two sums of costs. McLellan sought that the case be listed for formal proof as Springvale had not filed a statement of defence. The court had to decide whether the proceeding should be listed for formal proof, whether it should be dismissed for non-compliance with court orders, and the costs to be awarded on the application.

The court found that Springvale had failed to file a statement of defence, and that it was eligible to be listed for formal proof. However, the court declined to list the case for formal proof because it was likely that Springvale would be granted leave to file a statement of defence. The court found that Springvale’s application to dismiss the proceeding for non-compliance with court orders failed, as the court was satisfied that Springvale would not be able to recover the outstanding costs orders and any future costs award from McLellan.

The court ordered that Springvale pay McLellan’s costs on a 2B basis on the application, together with disbursements fixed by the Registrar. The costs would be set off against the outstanding costs owing by McLellan. If the sum now awarded to McLellan exceeded the total of the two outstanding costs awards together with interest from the dates of those awards calculated under the Judicature Act, any excess would be paid to McLellan.

Orders