Shuttleworth v Bainbridge HC Auckland CIV-2006-404-3678

[2007] NZHC 1628

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2006-404-3678

BETWEEN  LINDY SHUTTLEWORTH AND KURT BRANDON AS TRUSTEES FOR THE EMPANGENI TRUST

Plaintiffs

AND  BRYAN BAINBRIDGE First Defendant

ANDTHAMES COROMANDEL DISTRICT COUNCIL

Second Defendant

Hearing:         15 February 2007

Appearances: No appearance for Plaintiffs

M. Keall for First Defendant
M. Frogley for Second Defendant

Judgment:      15 February 2007

ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL

[1]      Before  the  Court  is  an  application  by  the  first  defendant  for  summary judgment striking out the plaintiffs’ claim against the first defendant.

[2]      There is no opposition to this application filed by the plaintiffs.

[3]      When this matter was last before the Court on 13 December 2006 Associate Judge Abbott issued a Minute setting out timetable orders for the filing and service by the plaintiffs of any opposition to the first defendant’s application for summary judgment.  This was to occur by 2 February 2007.  As I have noted, no opposition to

the application has been advanced by the plaintiffs.

SHUTTLEWORTH AND ANOR AS TRUSTEES FOR THE EMPANGENI TRUST V BAINBRIDGE AND ANOR HC AK CIV-2006-404-3678  15 February 2007

[4]      In  addition  to  the summary judgment  application  itself,  before  me  is  an associated  application  by the  first  defendant  for  leave to  bring  this  application. Under the circumstances, I am satisfied that leave should be given.   Accordingly leave is granted for the bringing of this application.

[5]      Turning now to the substantive application itself, in the proceeding which is before the Court, the plaintiffs sue the defendant personally with respect to damage to a dwelling which they contend the first defendant was in part responsible for.  The plaintiffs argue that in 1997 the first defendant prepared the architectural plans for the dwelling for previous owners.

[6]      The first defendant’s defence is essentially that this is a simple case of wrong identity.

[7]      In his affidavit sworn 13 October 2006 the first defendant deposes that the architectural plans in question were not prepared by him, but in fact were prepared by his company W.B. Bainbridge Limited (“the company”).

[8]      He goes on to state that throughout he has traded and conducted his business through the company, and this has dated back to 1990.

[9]      The defendant deposes that throughout he had no reason to act personally and always acted under the auspices of the company.  Invoices for the work were issued by the company and paid to it.

[10]     The first defendant confirms that he had no personal responsibility for the work in question.

[11]     Put simply, the first defendant argues that the plaintiffs have been in error in proceeding against him.

[12]     Having considered the affidavit of Mr Bainbridge filed in this matter and the other material before the Court, I am satisfied that this is indeed a clear case where the plaintiffs have proceeded against the wrong defendant in bringing these proceedings against the first defendant.

[13]     The  first  defendant’s  application  for  summary  judgment  is  one  brought pursuant to r136(2) High Court Rules.  It is clear that such an application is similar to a strike out application, in that the defendant must show that the plaintiff cannot succeed – see McGechan HR136.07.

[14]     It is clear too that summary judgment for a defendant will not be appropriate where it is possible for a plaintiff to amend its claim so as to remedy the defects relied on by a defendant.   It is only to be used where the defendant has a clear answer to the plaintiff which cannot be contradicted – Westpac Banking Corporation v M.M. Kembla NZ Limited [2001] 2 NZLR 298.

[15]     Here I accept the arguments advanced by counsel for the first defendant that this is a simple case where the plaintiff has proceeded against the wrong defendant. No amendment to the pleading can remedy this.

[16]     I  am  satisfied,  therefore,  that  the  first  defendant’s  summary  judgment application should succeed.  An order is now made granting summary judgment to the first defendant in terms of his application filed 2 November 2006, and striking out the plaintiffs’ claim against him.

[17]     The first defendant having been successful with this application, he is entitled to an order of costs.   Costs are awarded against the plaintiffs with respect to this application calculated on a 2B basis, together with disbursements, as fixed by the

Registrar.

Associate Judge D.I. Gendall