Nguyen v Kennedy

[2019] NZHC 1393

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2017-485-558

[2019] NZHC 1393

BETWEEN

ANH DO LAN NGUYEN

Plaintiff

AND

REBECCA ANGE KENNEDY

First Defendant

AND

YOEUN CHEN

Second Defendant

Hearing:

17 June 2019

Appearances:

G Bogiatto for Plaintiff

No appearance for First or Second Defendant

Judgment:

18 June 2019

JUDGMENT OF COOKE J

[1]This judgment deals with two applications arising in these proceedings.

First defendant’s stay application

[2]        By application dated 19 October 2018 the first defendant applied for a stay of enforcement of a judgment entered by the Associate Judge.1 The application concerns a limited category of property subject to the judgment, namely a Volkswagen Polo registration JLK440.

[3]        The background to the proceedings is set out in the Associate Judge’s judgment, which was entered by way of formal proof. Following that judgment the plaintiff obtained a charging order over the property at 8 Mewbury Rise, Karori dated

1      Nguyen v Kennedy [2018] NZHC 1845.

NGUYEN v KENNEDY [2019] NZHC 1393 [18 June 2019]

24 July 2018, and the sale order was subsequently made. The week before the property was to be sold in accordance with that order, by application dated 4 December 2018 the second defendant applied for a stay of enforcement of the sale order and to set aside the judgment.

[4]        On 14 December 2018 the parties jointly agreed on a timetable for the applications and those directions were made by Thomas J.

[5]        By memoranda dated 21 and 26 February 2019 the first and second defendants’ solicitors and counsel sought leave to withdraw on the basis they had not been paid for their legal fees. By minute dated 28 February 2019 I granted both applications.

[6]        By memorandum dated 7 March 2019 counsel instructed for the first defendant sought an adjournment of a fixture that had been scheduled for the first defendant’s application. I convened a telephone conference on Friday 8 March 2019. The plaintiff did not oppose the adjournment and I granted it.

[7]        When the application by the second defendant was called on 11 March there was no appearance for the second defendant. A lawyer, Mr Owen Jaques appeared to say that he was appearing as an officer of the court to convey to the court that the second defendant was seeking to arrange representation, and sought an adjournment. I declined that adjournment and struck out the second defendant’s application under  r 7.40(1)(c) of the High Court Rules 2016.

[8]        This left the first defendants more limited application for a stay of enforcement in relation to the Volkswagen Polo. This was given a hearing on 17 June. Again there has been no appearance from the first defendant.

[9]        For that reason I also conclude that the appropriate course is to strike out the first defendant’s application under r 7.40(1)(c) of the High Court Rules 2016.

[10]      I also agree that the plaintiff is entitled to costs on that application, and that they should be assessed on a 2B basis, and that the calculation set out in the memorandum of counsel for the plaintiff dated5 June 2019, including the

disbursements, is appropriate, and I make a costs order in that amount (totalling

$6,975.00).

Certificate of judgment

[11]      By an application dated 17 June which was filed immediately after the hearing referred to above, the plaintiff applies for a without notice order under s 11 of the Reciprocal Enforcement of Judgments Act 1934 for the issue of a certificate of judgment against the second defendant. The application is supported by an affidavit of the plaintiff, and a memorandum of counsel. In short the plaintiff is seeking a certificate of the judgment so that she can enforce it against the second defendant in Australia.

[12]      Rule 23.24 of the High Court Rules 2016 provides that an application for a certified copy of a judgment under s 11 of the Reciprocal Enforcement of Judgments Act 1934 must proceed without notice, and accordingly it seems to me that the application is in order.

[13]      Given the circumstances described above,  I accept that the requirements of   r 23.24 are met, and that the Registry may issue a copy of the judgment certified by the Registrar under r 23.25. Indeed it may well be that it is unnecessary to obtain an order from a Judge for this to occur, but for the avoidance of doubt I do so.

Cooke J