Mehta v Habitat Builders Limited - [2017] NZHC 2075

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-001284 [2017] NZHC 2075

BETWEEN
DHARMENDRA MEHTA

Appellant

AND

HABITAT BUILDERS LIMITED First Respondent

Discontinued

EMENUWAL CHANDRA Second Respondent

Hearing: 22 August 2017

Appearances:

K Dillon for the Appellant
M T Taylor for the Second Respondent

Judgment:

29 August 2017

JUDGMENT OF HINTON J

This judgment was delivered by me on 29 August 2017 at 10.30 am pursuant to Rule 11.5 of the High Court Rules

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

Counsel/Solicitors:
A Parlane, Parlane Law, Auckland
Kate Dillon, Barrister, Auckland
Matt Taylor, Barrister, Auckland

MEHTA v HABITAT BUILDERS LIMITED [2017] NZHC 2075 [29 August 2017]

[1] On 10 May 2016, Judge Sharp struck out Mr Mehta’s proceeding on the basis of non-compliance with orders made on 6 May 2016, and awarded costs against Mr Mehta in the sum of $13,939.30. On 6 May 2016, Judge Sharp had also made a costs award against Mr Mehta in the sum of $1,000.

[2] Mr Mehta appeals against both the strike-out and the two costs awards.

[3] Habitat Builders Ltd, the first respondent, was removed as a party to the proceedings on 20 August 2016 after going into liquidation on 4 December 2013, and being removed from the companies register on 4 June 2015. Mr Chandra was the owner and sole director of Habitat.

Background

[4] In early 2011, Habitat brought proceedings in the Disputes Tribunal claiming the balance it said was due under a building contract with Mr Mehta. Mr Mehta refused to pay on the basis there were defects in the way the house was built.

[5] The matter was transferred to the District Court, where Mr Mehta became the plaintiff and the defendants counter-claimed.

[6] The proceedings had a chequered history between 2011 and early 2015. Inter alia, Habitat Builders was granted default judgment at one point; Mr Mehta was granted default judgment at one point (both these judgments being in 2011) and both default judgments were set aside. A judicial settlement conference was allocated, but then vacated. A settlement conference then took place, but did not lead to resolution. A three-day fixture was set in late September 2013 and did not proceed for reasons that are unclear.

[7] In short, in my view it is properly accepted by Mr Taylor, for the respondent, that no blame could be attributed to either side (or maybe blame should be attributed equally to both) at least down to early 2015.

[8] A back-up fixture was allocated for 10 November 2014, but did not become a firm fixture. A firm fixture was instead allocated for 14 January 2015. It seems that

directions were made for filing of briefs, but these were overlooked by both sides. Mr Taylor had written to Mr Mehta’s then solicitor, Mr Trivedi on 21 October 2014 asking for a brief of evidence for the back-up on 10 November. On 23 December
2014, Mr Taylor sent Mr Chandra’s brief to Mr Trivedi because Mr Taylor was about

to go on holiday. At…

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: [2017] NZHC 2075
Decision Date: 29 August 2017

CaseChat Overview and Summary

In the High Court of New Zealand, Dharmendra Mehta appealed against the decision of Judge Sharp to strike out his proceeding against Emenuwal Chandra, the former owner and sole director of Habitat Builders Ltd. The primary issue was whether the strike-out was justified under the District Courts Act 1947. The appeal centred on the lack of progress in the proceeding over several years, with multiple changes in Mehta's legal representation and several non-compliances with court orders. Despite Mehta's failures to comply with some court orders, the High Court found that there was no good evidence that Mehta had been responsible for the lack of progress since the default judgments were set aside. The court held that Mehta had not been guilty of an inordinate delay and had not failed to prosecute his case. Therefore, the appeal was allowed, the proceeding was reinstated, and the costs order made on 10 May 2016 was set aside and replaced with a costs order of $1,000.

The court found that the strike-out was not justified, and the proceedings should not have been dismissed for want of prosecution. The court also determined that a costs order and conditions imposed on an adjournment would have been appropriate. The court ordered that Mehta pay into the District Court by 22 September 2017 the sum of $5,000 to be held as security for costs, which would be available to the defendant on account of costs if there was a further default by Mehta. If Mehta was ultimately successful or the proceedings settled, that amount could be paid back to him. Mehta was also entitled to costs on the appeal on a 2B basis.

Orders