Thompson v DD Construction Ltd

[2015] NZHC 1458

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-1319 [2015] NZHC 1458

BETWEEN

IAN ALLEN THOMPSON

Plaintiff

AND

DD CONSTRUCTION LTD First Defendant

BODY CORPORATE 167241

Second Defendant

Hearing:	26 June 2015
Counsel:	W A McCartney for Plaintiff No appearance by or on behalf of Defendants
Judgment:	26 June 2015

JUDGMENT OF BREWER J

Solicitors:        Pidgeon Law (Auckland) for Plaintiff

Turner Hopkins (Auckland) for First Defendant

Counsel:         William McCartney

THOMPSON v DD CONSTRUCTION LTD [2015] NZHC 1458 [26 June 2015]

[1]      The plaintiff applies for orders by way of interim injunction.

[2]      The broad situation is that the plaintiff owns two units in a block of eight units pursuant to unit titles.  The units were leaking.  The first defendant, a builder, contracted with the Body Corporate to repair the eight units.  The first defendant’s charges for its work have greatly exceeded the plaintiff’s expectations.  The plaintiff has not paid the last invoices from the first defendant relating to his two units. Instead, he has paid the invoiced sums, totalling $20,014.62, into his solicitor’s trust account.

[3]      The interim injunction application arises from the fact that the first defendant managed to register mortgages against the titles to the plaintiff’s two units to secure payment of the outstanding invoices.  The plaintiff never authorised mortgages to be registered and his substantive claim is that the mortgages were registered unlawfully. The plaintiff needs to refinance the mortgage he took from the vendor of one of the units.  He cannot do that while the first defendant’s mortgage is registered.

[4]      Happily,  I  do  not  need  to  decide  the  merits  of  the  interim  injunction application, although I formed a preliminary view that some sort of injunctive relief would need to be given to enable the plaintiff to refinance the unit concerned.

[5]      This morning, Mr McCartney for the plaintiff advises me that the parties have reached a settlement.  He has given me a consent memorandum signed by himself as counsel for the plaintiff and by Ms Green as counsel for the first defendant.  There is no claim in the statement of claim or in the application for interim injunction in respect of the second defendant.

[6]      I am invited to make orders by consent and now do so as follows:

(a)      The first defendant will forthwith remove mortgage 10042847.1 from title NA101C/57 and mortgage 10042847.2 from title NA101C/58, and will not register any further mortgages against those titles.

(b)The  plaintiff’s  applications  for  interim  injunction  and  summary judgment are struck out with costs reserved.1

(c)      Because the parties have agreed to submit their dispute to mediation, no case management conference in respect of the substantive proceeding is to be set down before 30 September 2015.

[7]      I direct the registry to list the case for call in the duty list after 30 September

2015 if the substantive proceeding is not withdrawn by 15 September 2015.

Brewer J

1      The plaintiff had applied for summary judgment by application dated 15 June 2015.  On 17 June

2015, Keane J set the matter down for hearing on 28 July 2015.