Parkin v Marr

[2015] NZHC 2507

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001438 [2015] NZHC 2507

IN THE MATTER OF

an application under Part 13 of the High

Court Rules

BETWEEN

BARRY IAN PARKIN Plaintiff

AND

BERNADETTE MAKUINI MARR First Defendant

KEITH CHARLES BLUETT MARR Second Defendant

CHARLOTTE RUBY MARR Third Defendant

KEITH PAUL MARR Fourth Defendant

Hearing:	13 October 2015
Appearances:	K T Glover for Plaintiff No appearance for Defendants
Judgment:	13 October 2015

JUDGMENT OF VENNING J

Solicitors:           Graham Jones Law, Orakei

Copy to:            K T Glover, Auckland

Defendants

PARKIN v MARR [2015] NZHC 2507 [13 October 2015]

[1]      The previous minutes on this file refer, particularly the most recent minute of

Lang J of 6 October 2015.

[2]      The plaintiff seeks judgment today against the first to third defendants.  One remaining procedural matter when this case was before Lang J was the issue of substituted service on the third defendant via Facebook.  The amended pleadings and application had previously been served on the solicitor who had had some involvement on behalf of the defendants in the past.

[3]      Following the appearance in Court last week the plaintiff has now complied with the requirement to communicate with the third defendant via Facebook and an affidavit as to service in that way has been filed.  In addition in the minute Lang J directed counsel for the plaintiff to serve a copy of the minute on the solicitor for the defendants.   Mr Glover confirms that that has been attended to.   If necessary I abridge  time  for  service.    There  is  no  appearance  of  or  for  the  first  to  third defendants this morning.

[4]      The  evidence  before  the  Court  confirms  the  background  to  this  matter. Briefly it is that the first to third defendants claimed an interest in the property.  They lodged a caveat to support that interest. The caveat was sustained on an interim basis in separate proceedings but on terms that the defendants were to pay $650 per week into the trust account of the plaintiff’s solicitor, funds to be held pending the resolution  of  the  issues  between  the  parties.    That  payment  was  amended  to  a monthly sum.

[5]      Ultimately the caveat was discharged following a substantive hearing in this Court.  One of the defendants took the matter on appeal to the Court of Appeal.  That was dismissed.  The caveat therefore lapsed.  The defendants were held by the Court to have no registrable interest in the property.   The plaintiff then pursued these proceedings  seeking vacant  possession  of  the  property,  together  with  orders  for damages and mesne profits.

[6]      During the course of these proceedings the defendants have surrendered possession of the property to the plaintiff.  It is unnecessary to pursue the order for

possession.    However  the  plaintiff  seeks  judgment  for  the  damages  and  mesne profits.

[7]      On the basis of the evidence before the Court I am satisfied the defendants have no reasonably arguable defence to the claim.   The plaintiffs are entitled to judgment as follows.

(a)       Judgment for the rental due from 19 August 2013 to 31 March 2015 at

$2,817 per month, in total $53,523 (jointly and severally against the first, second and third defendants).

(b)Mesne profits from 1 April 2015 to 29 September 2015 when they vacated the property.   That judgment is in the sum of $16,992.86 based on a calculation of $650.00 per week (jointly and severally against the first and second defendants only).

[8]      I record that counsel for the plaintiff has advised his instructions are the third defendant vacated the property at an earlier date and has been living overseas for some time.

[9]      A sum of money is held in the plaintiff’s solicitor’s trust account pursuant to the undertaking provided by the defendants.  That sum is $53,707.  I direct that the plaintiff’s solicitor, Graham Jones Law, may release those funds to Mr Parkin, the plaintiff, in part satisfaction of the payment of the judgment sums referred to above.

Costs

[10]     The plaintiff having succeeded is entitled to costs.  The plaintiff is to have costs against the defendants, jointly and severally, in relation to all three defendants, in the sum of $16,307, together with disbursements of $1,660 plus the cost of the process server.  That cost is to be confirmed by a copy of the email advising of that

cost when the judgment and costs are presented for sealing.

Venning J