Sheehan v Hucker - [2025] NZHC 1413

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3198

[2025] NZHC 1413

UNDER the Lawyers and Conveyancers Act 2006

IN THE MATTEE

of an appeal against judgment in the District Court

BETWEEN

KATHRYN JANE SHEEHAN

Appellant

AND

MOLLOY HUCKER

Respondent

Hearing: 29 May 2025

Appearances:

Appellant in Person

S Hamilton for Respondent

Judgment:

30 May 2025

JUDGMENT OF WILKINSON-SMITH J

This judgment was delivered by me on 30/05/2025 at 4 pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
Kiely Thompson Caisley, Auckland Copy to Appellant
SHEEHAN v MOLLOY HUCKER [2025] NZHC 1413 [30 May 2025]

Introduction

[1] Ms Sheehan appeals against a decision of Judge Andrée Wiltens dated 7 November 2024 declining to reinstate an earlier application to set aside a default judgment.1

Background

[2] The background to this matter is a dispute involving Ms Sheehan regarding legal fees incurred in the course of another proceeding. Molloy Hucker sued to recover fees incurred by a barrister who acted for Ms Sheehan. Ms Sheehan has made a costs complaint to the New Zealand Law Society. That matter is before the Standards Committee.

[3] Ms Sheehan did not file a statement of defence to the claim in the District Court. On 22 August 2024, the District Court released a judgment against Ms Sheehan awarding damages of $59,285.80 together with interest, and costs and disbursements amounting to $1925.65 (the Default Judgment).

[4] Molloy Hucker has been served with a notice under s 161 of the Lawyers and Conveyancers Act 2006 to stay any proceedings pending the final determination of Ms Sheehan’s complaint to the New Zealand Law Society. The Default Judgment cannot be enforced until the costs complaint is decided.2

[5] On 24 September 2024 Ms Sheehan applied for an order setting aside the Default Judgment.

[6] On 5 November 2024 Ms Sheehan failed to appear to advance her application, she says because she had understood that the matter would be heard in the North Shore District Court, rather than the Auckland District Court. Ms Sheehan says that arrangements were made for her to make a telephone appearance, but she was not able to appear. Judge Andrée Wiltens struck out the application for non-appearance.3

1 Molloy Hucker v Sheehan DC Auckland CIV-2024-044-000733, 27 November 2024 (Minute).
2 Lawyers and Conveyancers Act 2006, s 161(1).
3 Molloy Hucker v Sheehan DC Auckland CIV-2024-044-000733, 5 November 2024 (Minute).

[7] Ms Sheehan then filed a memorandum seeking to reinstate the application which was refused by Judge Andrée Wiltens on 27 November 2024. The Judge said:

Defence Counsel’s memo is noted. The orders made on 07/11/2024 will not be re-called. I consider Ms Sheehan to be further attempting to delay. I do not accept she did not know to appear at ADC. Her appearance at NSDC was [part of] her plan to further delay.

[8] Ms Sheehan subsequently filed the current appeal in the High Court by…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sheehan v Hucker

Details

AGLC: Sheehan v Hucker [2025] NZHC 1413
Case: [2025] NZHC 1413
Decision Date: 30 May 2025

CaseChat Overview and Summary

In Sheehan v Hucker, Kathryn Sheehan appeals against a decision of the District Court to decline to reinstate her application to set aside a default judgment in favour of Molloy Hucker. The appeal was heard in the High Court of New Zealand at Auckland, where Sheehan sought to challenge the default judgment awarded to Molloy Hucker for legal fees incurred in another proceeding. Sheehan had previously failed to appear in the District Court for her application, leading to the striking out of her application. Sheehan then sought to reinstate her application, which was declined by Judge Andrée Wiltens.

The legal issues before the Court included whether the appeal was a nullity due to uncertainty about which judgments Sheehan wished to appeal, and whether the Court had jurisdiction to set aside the default judgment or whether Sheehan's remedy was an application to set the default judgment aside, which she had already exercised unsuccessfully. During the case management conference, it was accepted that the decision of Judge Andrée Wiltens to decline to reinstate the application was appealable. A further issue was whether Sheehan's failure to pay security for costs on time resulted in the abandonment of her appeal. Sheehan did not pay the security by the required date but later paid it, leading to a jurisdictional debate.

Wilkinson-Smith J considered the jurisdictional issue and noted conflicting authority on whether the Court has jurisdiction to extend the time for payment of security for costs after the date by which the Court ordered security to be paid. The Court discussed the relevant rules and statutes, including the District Court Act and the High Court Rules. Ultimately, the Court concluded that there is jurisdiction to extend the time for payment of security under the High Court Rules, but noted that this does not reinstate proceedings already deemed abandoned by statute.

The appeal was resolved by consent, with the parties agreeing to dismiss the appeal, award costs to the respondent, disburse the security for costs to the respondent, and continue the non-publication order regarding Sheehan's address. The Court delivered its judgment rather than a minute, as requested by the respondent's counsel.

Orders