Nestel v Millar - [2020] NZHC 2500

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2020-425-55

[2020] NZHC 2500

UNDER the Trans-Tasman Proceedings Act 2010

AND

IN THE MATTER

of the registration of an Australian judgment

BETWEEN

JOHN NESTEL

Plaintiff

AND

DARRYL CHRISTOPHER MILLAR

First Defendant

AND

LINDA MAREE MILLAR

Second Defendant

Hearing: Determined on the papers

Counsel:

B Silva for Plaintiff

Judgment:

24 September 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 24 September 2020 at 12.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 24 September 2020

NESTEL v MILLAR [2020] NZHC 2500 [24 September 2020]

[1] This is a without notice application for an extension of the time period for registration of an Australian judgment pursuant to the Trans-Tasman Proceedings Act 2010 (the Act).

[2] Section 56 of the Act provides that an application may be made to the Registrar of a New Zealand court to register an Australian judgment. The application must be made within six years after the day on which the judgment is given, or within such longer period as the New Zealand court considers appropriate. An application for an extension of time may be made before or after the expiry of the six year time limit (s 56(2)(c) of the Act).

[3] The judgment in this case was obtained by Mr Nestel against the first and second defendants in the District Court of New South Wales. The judgment, which is produced to the Court, refers to the judgment being made or given on 6 May 2013 and that is the date given in the application as to when the judgment was entered in Australia. As noted below, this application is made by Mr Nestel’s insurer in his name under the right of subrogation.

Reasons for delay

[4] A full affidavit has been filed cataloguing the steps taken by the Mr Nestel to enforce the judgment.

[5] While the judgment was issued on 6 May 2013, that judgment represents the registration as a judgment in the District Court of an order made in 2010 by the Consumer, Trader and Tenancy Tribunal of New South Wales. Following Mr Nestel obtaining that judgment, he lodged a claim with his insurer in relation to the defective building works, which were the subject of the claim, on the basis that the defendants had “disappeared”, thereby triggering a policy response.

[6] There was a dispute between Mr Nestel and his insurer, which has been resolved. The insurer paid out Mr Nestel and is continuing this claim pursuant to its rights of subrogation.

[7] When the insurer sought to enforce its judgment against the defendants, it found they had moved to Vanuatu. It was to allow the enforcement of the judgment in Vanuatu that the 2010 order was registered as a judgment in the District Court.

[8] The affidavit recounts steps taken to register the judgment in Vanuatu, resulting in the judgment being entered in the Supreme Court of the…

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: [2020] NZHC 2500
Decision Date: 24 September 2020

CaseChat Overview and Summary

The case of Nestel v Millar concerns an application for the extension of the time period for the registration of an Australian judgment in New Zealand. The plaintiff, John Nestel, sought to register a judgment obtained against the first defendant, Darryl Christopher Millar, and the second defendant, Linda Maree Millar, in the District Court of New South Wales. The application was brought under the Trans-Tasman Proceedings Act 2010, and the matter was determined on the papers by Associate Judge Lester. The primary legal issue before the court was whether the six-year time limit for the registration of an Australian judgment could be extended under section 56(2)(c) of the Act. The court was required to consider the reasons for the delay in applying for the extension and determine if the delay was reasonable and justified.

Associate Judge Lester concluded that the delay in applying for the extension of time was due to the defendants relocating from Australia to Vanuatu and subsequently to New Zealand without leaving any forwarding address. The insurer, acting under the rights of subrogation, had made efforts to enforce the judgment and had partially recovered the amount due. The court accepted that the defendants' deliberate relocation and lack of communication with the insurer constituted a reasonable explanation for the delay. Consequently, the court granted the application for an extension of time, allowing the registration of the Australian judgment until 6 February 2021.

Associate Judge Lester also noted that the defendants had participated in the court process in Vanuatu, resulting in partial payment from Mr. Millar's salary. The court inferred that the defendants' relocation was intended to frustrate recovery by the insurer. As such, the court found that the defendants could not complain about the delay in the registration of the judgment. The court reserved costs in respect of this application, indicating that further determination might be made at a later stage.

Orders