Singapore Airlines Ltd v Mistry - [2014] NZHC 1055

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2013-485-3911 [2014] NZHC 1055

BETWEEN
SINGAPORE AIRLINES LIMITED

Plaintiff

AND

JITESH MOHAN MISTRY Defendant

Hearing: 13 May 2014

Appearances:

C Matsis for Plaintiff
J Haig for Defendant

Judgment:

20 May 2014

JUDGMENT OF ASSOCIATE JUDGE SMITH

[1] At a hearing on 25 November 2013, the plaintiff obtained summary judgment by default against the defendant for a total sum, including interest, costs and disbursements, of $382,440.61. The defendant was not present or represented by counsel at the hearing.

[2] The defendant now applies to set aside the summary judgment.

[3] The defendant relies on r 12.14 of the High Court Rules, which provides as follows:

Setting aside judgment

A judgment given against a party who does not appear at the hearing of an application for judgment under rule 12.2 or 12.3 may be set aside or varied by the court on any terms it thinks just if it appears to the court that there has been or may have been a miscarriage of justice.

SINGAPORE AIRLINES LIMITED v JITESH MOHAN MISTRY [2014] NZHC 1055 [20 May 2014]

(1)Why did the defendant not attend the hearing of the application for summary judgment?

(2)Was service of the summary judgment documents effected in accordance with the High Court Rules?

(3)Should the summary judgment be set aside if it was irregularly obtained?

(4)Should the court go on to consider the merits of the application for summary judgement?

Why did the defendant not attend the hearing of the application for summary judgment?

[5] The Court hearing the application for summary judgment had before it an affidavit of service sworn on 4 October 2013 by Dion Neill, a Wellington private investigator and process server. In his affidavit, Mr Neill deposed that he served the application, with copies of the statement of claim, notice of proceeding, and supporting affidavits, by handing the documents to the defendant personally on Saturday 17 August 2013 at his home in Ontario Street. Mr Neill stated that he believed that it was the defendant he had served because he identified the defendant from previous matters.

[6] The defendant says that he was never served with the application. He says that he only became aware of the summary judgment entered against him when on 3
February 2014 Mr Neill served a bankruptcy notice on him at his place of work. The defendant then obtained copies of the Court documents, and promptly filed the present application.

[7] In his supporting affidavit, the defendant stated that he did not believe Mr Neill had served him with the summary judgment papers at his home, for a number of reasons. First, the claimed date of service was both a Saturday and the

defendant’s birthday. He said that on the day in question he slept in at home until around midday, and left the house at approximately 1pm and did not return home until the following day (having stayed at a hotel). He said that at no time on that…

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.

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Details

Case: [2014] NZHC 1055
Decision Date: 20 May 2014

CaseChat Overview and Summary

Singapore Airlines Limited sued Jitesh Mohan Mistry for a sum of $382,440.61. The defendant did not appear or defend the case when the summary judgment was heard on 25 November 2013. The defendant applied to set aside the summary judgment obtained by default. The court was required to decide whether the defendant was served with the summary judgment documents in accordance with the High Court Rules, and whether the summary judgment should be set aside if it was irregularly obtained. The court found that the service of the summary judgment documents was ineffective, and the summary judgment was irregularly obtained. The court set aside the summary judgment on the ground that it had been irregularly obtained. The court refrained from making any findings on the merits of the plaintiff's application for summary judgment. The plaintiff's summary judgment application was to be dealt with afresh. The defendant was required to file a notice of opposition to the plaintiff's application for summary judgment by 26 May 2014. Any additional affidavits the defendant wished to rely upon in opposition to the application for summary judgment were to be filed and served by the same date. Any affidavits the plaintiff wished to file in reply to any new affidavits filed by the defendant were to be filed and served by 3 June 2014. Any supplementary submissions the plaintiff wished to make were to be included in a supplementary synopsis to be filed and served by 3 June 2014. Any supplementary submissions the defendant wished to make were to be filed and served by 6 June 2014.

Orders