Neumayer v Kapiti Coast District Council

[2013] NZHC 1106

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV 2012-485-2677 [2013] NZHC 1106

BETWEEN  SEBASTIAN NEUMAYER AND LA DENE RAINA NEUMAYER Plaintiffs

ANDKAPITI COAST DISTRICT COUNCIL First Defendant

ANDNEW CENTURY REAL ESTATE LIMITED

Second Defendant

ANDKLAUS TAMERLER Third Defendant

Hearing:         14 May 2013

Counsel:         P H Bremer with S J Baldwin for Plaintiffs

P A Robertson for First Defendant

Judgment:      15 May 2013

JUDGMENT OF THE HON JUSTICE KÓS (Application for judgment by default)

[1]      The plaintiffs apply for judgment by default under Rule 15.9 against the second and third defendants.

[2]      The proceedings are brought in respect of a leaky home at 7 Sylvia Way, Te Horo, north of Wellington.  The plaintiffs are the owners of that property.  The first defendant is the local territorial authority.  The second and third defendants are real estate agents who acted for the vendors on the sale of the property to the plaintiffs.  The second and third defendants are said to have made misrepresentations

to the plaintiffs.

NEUMAYER & ANOR v KAPITI COAST DISTRICT COUNCIL & ORS HC WN CIV 2012-485-2677 [15 May 2013]

[3]      The second defendant was served on 21 January 2013.  The third defendant was served (by substituted service in accordance with an order made by Associate Judge Gendall) on 13 February 2013.

[4]      Neither have taken steps in the proceeding.

[5]      The plaintiffs seek the following orders:

That judgment by default be granted in accordance with Part 15 (subpart 2) of the High Court Rules on the plaintiffs’ claims and the cross claims by the Council.

That a date for trial for the assessment of damages against the second and third defendants be set down, pursuant to Rule 15.9, to be heard simultaneously with the trial of the substantive proceeding; and

that at the same time the Court considers the claim for contribution by the first defendant against these defendants.

[6]      The claims against the second and third defendants, by the plaintiffs, are for repair costs and consequential losses (each yet to be quantified) and general damages of $35,000 per plaintiff.  The Council’s cross-claims against are for contribution (on the basis that, if liability is established, those defendants are concurrent tortfeasors).

[7]      It appears to be accepted by the plaintiffs (and by the Council) that this is not a claim to which Rule 15.7 applies. That is, the principal claims and the cross-claims against the second and third defendants cannot be said to be for a “liquidated demand”.

[8]      As  a  result  it  is  accepted  that  Rule  15.9  applies.    That  rule  provides  a mandatory procedure.     It does not involve the immediate entry of judgment by default.   Rather that part of the proceeding must be listed for formal proof, and affidavit evidence must be filed.  It does not appear this offers any advantage in the present case over allowing matters to run their course to trial, apart from the restriction on the late filing of a statement of defence in Rule 15.9(3).  However if the plaintiffs or Council wish to proceed with formal proof, they may apply.

[9]      Given the degree of default, no statement of defence by the second or third defendant may now be filed without an application for leave to do so.  Absent leave, they are now debarred from defending the claim and cross-claims against them.

Result

[10]     Application for entry of judgment by default dismissed.

Stephen Kós J

Solicitors:

Grimshaw & Co, Auckland for Plaintiffs

Heaney & Co, Auckland for First Defendant