Oceania Marine Limited v Nautical Contracting Limited
[2020] NZHC 347
•2 March 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2019-404-002485
[2020] NZHC 347
BETWEEN OCEANIA MARINE LIMITED
Plaintiff
AND
NAUTICAL CONTRACTING LIMITED
Defendant
Hearing: In Chambers (on the papers) Counsel:
N A Beadle and C M Laband for the Plaintiff
Judgment:
2 March 2020
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 02 March 2020 at 2.30pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel: DLA Piper, Auckland
OCEANIA MARINE LIMITED v NAUTICAL CONTRACTING LIMITED [2020] NZHC 347 [2 March 2020]
[1] In accordance with r 15.7 of the High Court Rules 2016, the plaintiff, Oceania Marine Ltd, has applied for judgment by default against the defendant, Nautical Contracting Ltd, for the sum of €278,268, interest of €3,244.76, and costs and disbursements of $4,063 and $1,738.
Reason for Application
[2] In 2016 Oceania contracted with Turtle Island Ltd to refurbish a yacht, the Bella Ragazza. Oceania subcontracted with Nautical Contracting to replace the teak decking on the boat. The defendant completed the decking refurbishment works in May 2017.
[3] The decking repairs failed soon after the Bella Ragazza had travelled to Cairns, Australia in August 2017. Oceania says Nautical Contacting carried out the refurbishment works negligently and in breach of its contract with Oceania and, as a consequence, placed Oceania in breach of its contract with Turtle Island.
[4] Turtle Island subsequently had the entire decking removed and replaced in Europe. The cost of those repairs was €338, 003.15.
[5]Under its contract with Turtle Island, Oceania’s liability was limited to
€278,268 and Oceania and Turtle Island reached settlement for this amount.
Oceania’s claim against Nautical Contracting
[6] On 15 November 2019, Oceania filed and served on Nautical Contracting a statement of claim and notice of proceeding dated 7 November 2019.
[7] The statement of claim alleged breach of contractual warranty, breach of contractual duty of care, and breach of tortious duty of care, and sought judgment for the sum of €278,268, being the amount of Oceania’s settlement with Turtle Island, interest in accordance with the Interest on Money Claims Act 2016, and costs.
[8] The notice of proceeding required Nautical Contracting to file a statement of defence within 25 working days of the service of the notice.
[9]Nautical Contracting has not filed a statement of defence.
[10] Accordingly, Oceania seeks judgment by default in accordance with r 15.7 of the High Court Rules.
Oceania’s claim for default judgment
[11] Rule 15.7 provides that when a plaintiff claims payment of a liquidated demand and no statement of defence has been filed within the number of working days required by the notice of proceeding, the plaintiff may seal judgment for that sum, plus interest, costs and disbursements.
[12] Rule 15.4 provides that an affidavit of service of the statement of claim and notice of proceeding must be filed before a judgment by default can be sealed, along with an affidavit verifying the statement of claim if service was not effected personally on the defendant or its solicitor.
[13] I am satisfied that the amount claimed by Oceania is a “liquidated demand” for the purposes of r 15.7. In terms of r 15.7(5)(a), the amount has been quantified on the basis of a contract relied on by Oceania, namely Oceania’s contract with Turtle Island, which determined Oceania’s liability to Turtle Island and so determined the amount of Oceania’s claim against Nautical Contracting.
[14]I am also satisfied that the requirements of r 15.7(1) and r 15.4 have been met:
(a)By affidavit dated 3 February 2010, Rod Keith Moratti affirmed that on 15 November 2019 he served the statement of claim, notice of proceeding and a list of documents dated 15 November 2019 on Nautical Consulting at its registered offices, and that the documents were accepted for service.
(b)By affidavit sworn on 5 February 2020, James Russell Finlay, solicitor verified the statement of claim.
Interest
[15] Oceania claims interest of €3,244.76 in accordance with the Interest on Money Claims Act 2016, calculated from 24 September 2019, the date it incurred the loss, to 11 February 2020, the date of its application.
[16] Because the amount claimed is in a foreign currency, Oceania relies on the Court’s discretion under s 17 of the Interest on Money Claims Act to:
(a)Award interest at a rate that the court considers fairly and realistically reflects relevant economic circumstances; and
(b)Determine the manner (with or without compounding) by which interest at that rate is to be calculated.
[17] Section 17 of the Interest on Money Claims Act provides that, where judgment is expressed in a foreign currency, the Court may award interest at a rate that it considers fairly and realistically reflects relevant economic circumstances. Oceania accepts, however, that the calculation of interest should be made in the ordinary way as set out in ss 12 to 16 of the Act.
Costs and disbursements
[18] A schedule of Oceania’s costs and disbursements was annexed to a memorandum dated 11 February 2020 from counsel for Oceania.
[19] Oceania, having succeeded, is entitled to costs on a 2B basis of $4,063 and disbursements $1,738 as set out in the memorandum of counsel for Oceania.
Result
[20] The plaintiff, Oceania Marine Ltd, is entitled to default judgment against the defendant, Nautical Contracting Ltd under r 15.7(3) in respect of:
(a) Loss of €278,268;
(b)Interest of €3,244.76;
(c)Costs of $4,063;
(d)Disbursements of $1,738.
[21] The date upon which the sums of loss and interest are to be converted into New Zealand dollars is the date the plaintiff executes the judgment.1
G J van Bohemen J
1 This is the default position. See Gelder v Innate Immunotherapeutics Ltd [2016] NZHC 1885; Mortimer v Motorsport Logistic Ltd [201] NZHC 921 at [42]-[44] referring to Miliangos v George Frank (Textiles) Ltd [1976] AC 443.
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