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 Republic of Vanuatu in August 2015.

[9]    Enforcement steps followed with the insurer obtaining a garnishee order against Mr Millar’s wages, pursuant to which some AU$11,000 was recovered.

[10]   Up until around March 2017, the insurer was receiving payments under the order against Mr Millar’s wages. However, in March 2017, the insurer was informed by its legal representatives that the defendants appeared to have permanently departed Vanuatu.

[11]   The insurer then instructed consultants to attempt to locate the defendants who had not provided a forwarding address when they left Vanuatu. The affidavit recounts regular checks being made by  the  consultants  without  success  until  around  March 2019, when the insurer learnt of a High Court decision regarding an order to destroy the defendants’ dog. The High Court decision Millar v Invercargill City Council, put the insurer on the trail of the defendants.1

[12]   The insurer arranged for a  letter  of  demand  to  be  personally  served  on Mr Millar, that occurring in November 2019 without response.

[13]   Six years from the date of the judgment, 6 May 2013, had expired by the time the insurer traced an address for the defendants, that not occurring until October 2019.

[14]   I accept the delay in the insurer seeking to enforce its judgment is due to the defendants relocating firstly from Australia to Vanuatu, and then from Vanuatu to New Zealand without notice, leaving no forwarding address or otherwise communicating with the insurer. The defendants having chosen not to communicate

1      Millar v Invercargill City Council [2018] NZHC 335.

with the insurer in respect of their obligations, cannot now complain that the insurer has to seek an extension of time. The defendants were fully aware of the judgment against them, having participated in the court process in Vanuatu resulting in the payments from Mr Millar’s salary. The inference is the defendants left Vanuatu in  the circumstances they did to frustrate recovery by the insurer.

[15]   I am satisfied it is appropriate to extend the time period until 6 February 2021 to register the Australian judgment in New Zealand. That is the time nominated in the application. Accordingly, there is an order pursuant to s 56(2)(c)(iii) so extending time.

[16]Costs are reserved in respect of this application.

Associate Judge Lester

Solicitors:
William Roberts Lawyers,