Smith v Moana - [2013] NZHC 2754

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CIV-2012-419-1589 [2013] NZHC 2754

BETWEEN SHANE MICHAEL SMITH and LEANNE MARGARET SMITH Plaintiffs

ANDTOMMY KURU MOANA and JOHN MALCOLM RUKA as trustees of the Te Rau Aroha Manu Whenua Trust Defendants

Hearing: 17 October 2013

Counsel:

Appearances:

JK Gilby-Todd for plaintiffs

MD Talbot given leave to withdraw

TK Moana and JM Ruka, defendants in person

Judgment: 22 October 2013

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application to set aside summary judgment]

This judgment was delivered by me on 22 October 2013 at 3pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Harkness Henry, Hamilton
Talbot Law, Hamilton

And To: TK Moana and JM Ruka, Hamilton

SMITH v MOANA [2013] NZHC 2754 [22 October 2013]

The application

[1] The defendants apply to set aside a summary judgment obtained against them on 18 February 2013.

The grounds advanced in support

[2] The application is made in reliance on r 12.14 of the High Court Rules. Rule

12.14 provides:

12.14 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.

[3] The defendants say that they have affirmative defences to the claim that was filed against them and which in summary are as follows:

(a) There was an oral variation of the agreement which was the basis for the summary judgment application;

(b)The date for the settlement in the agreement had been waived by the plaintiffs;

(c) They had part-performed the oral variation; and

(d)The plaintiffs are estopped from denying the existence of the variation.

[4] A further matter is raised, namely that the agreement which is the subject of the summary judgment application contained a provision that limited the defendants’ liability to the assets of the Te Rau Aroha Mano Whenua Trust.

Representation of the defendants

[5] Mr MD Talbot was instructed on the defendants’ behalf and duly prepared the

application to set aside the judgment, together with two affidavits in support and the

two affidavits in reply. He advised that his instructions had been withdrawn and accordingly appeared and sought leave to withdraw, which was duly granted.

Submissions

[6] When a fixture was made for this application, directions were made for the filing and service of submissions in support and in opposition. No doubt because of the withdrawal of Mr Talbot’s instructions, the defendants did not comply. The plaintiffs’ counsel was forced to file submissions without the benefit of submissions in support of the application on the defendants’ side. That had a practical difficulty in that precise submissions in response to the defendants’ case were not prepared. When I read the submissions I was not satisfied that there had been a careful consideration of the specific matters raised…

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: [2013] NZHC 2754
Decision Date: 22 October 2013

CaseChat Overview and Summary

The case of Smith v Moana involved a dispute over a contract for the sale of a property at 165 Osborne Road, Hamilton. The plaintiffs, Shane and Leanne Smith, alleged that the defendants, Tommy Moana and John Malcolm Ruka as trustees of the Te Rau Aroha Manu Whenua Trust, breached a sale and purchase contract. The defendants applied to set aside a summary judgment that had been entered against them on 18 February 2013. The court considered the defendants' claims of an oral variation to the written contract, part performance, and estoppel, as well as the limitation of liability clause in the contract. The court found that the defendants' claims did not provide a proper foundation for a defence to the plaintiffs' claim, and therefore dismissed the defendants' application to set aside judgment. The court also ordered the defendants to pay costs based on Category 2 Band B for the application, together with disbursements as fixed by the Registrar.

Orders