Utopia Developments Limited v Park HC Tauranga CIV-2009-470-001079

[2011] NZHC 370

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CIV-2009-470-001079

BETWEEN  UTOPIA DEVELOPMENTS LIMITED Plaintiff

ANDSUNG TAEK PARK Defendant

Hearing:         2 February 2011 (Heard at Rotorua)

Appearances: S J Hartnett for the Plaintiff

Sung Taek Park Defendant in person

Judgment:      2 February 2011

ORAL JUDGMENT OF PRIESTLEY J

Solicitors:

S J Harknett, Jackson Reeves, DX HP40052, Tauranga 3140. Fax: [phone]

Email: [email protected].

Copy to:

Mr Park, Email: [email protected]

UTOPIA DEVELOPMENTS LTD V PARK HC TAU CIV-2009-470-001079 2 February 2011

[1]      Today’s hearing is for formal proof of the plaintiff ’s claim.

[2]      The  plaintiff  and  defendant  are  parties  to  two  agreements  for  sale  and purchase in terms of which the defendant agreed to purchase Lots 27 and 34 in the ill-fated Utopia Park subdivision, Welcome Bay.

[3]      The defendant filed a statement of defence in April 2010.  There have since then been a number of conferences before Associate Judge Doogue.

[4]      Unlike a lot of defendants associated with this subdivision, this defendant has taken a number of steps.   These have included filing an amended statement of defence.

[5]      In July 2010 orders were made for provision of an affidavit of documents against the defendant.  There was no compliance.  On 12 October 2010 the defendant was directed to file and serve an affidavit of documents by 2 November.  The order made by the Associate Judge was an unless order.   As the Judge put it, “if the defendant fails to comply, ... it shall be deemed that his defence has been struck out”.

[6]      There was no compliance.   In a memorandum presented for a subsequent conference on 25 November Mr Hartnett sought an order striking out the statement of defence.  As best as I can see no such order was made although the Associate Judge did set down this formal proof hearing.

[7]      To  put  the matter beyond  doubt  I make today an  order  striking  out  the statement of defence for non-compliance with the unless order.

[8]      Mr Park, the defendant, has done this Court the courtesy of appearing today. He originally sought an adjournment.  A Korean interpreter was meant to be booked but for some reason was not.  Mr Park is clearly at a linguistic disadvantage.

[9]      He tells me he has attempted to engage a lawyer but that it is too expensive. As I have said Mr Park sought an adjournment today because of personal family commitments.  However, he has appeared.

[10]     I very much doubt whether there is a valid defence here.  However, out of an abundance of caution and having discussed the matter with Mr Hartnett, what I intend to do is enter judgment for the plaintiff but on the basis the judgment lie in Court for a short period.   If, by the date I have stipulated, the defendant has not sought leave through a solicitor to have the judgment set aside and stayed then the judgment can be sealed and enforced.

[11]     Thus I make, as a result of the formal proof hearing and on the basis of the supporting affidavit of Ms K S Mitchell, orders in terms of paragraphs one to three inclusive of the draft judgment filed.

[12]     Costs are reserved.  Costs may be determined on the papers once counsel has finalised them.

[13]     The judgment which I have made as a result of this formal proof hearing is to lie in Court until Friday 11 March 2011.  If by that date no steps have been taken by the defendant to move the judgment be set aside and stayed then the judgment is to be sealed and can be enforced in the normal way.

[14]     Any application made by the defendant as a result of this indulgence will have to be scheduled for hearing in the normal way.

[15]     To guide any future judicial officer I indicate that the application to set aside the judgment will obviously only succeed if compelling grounds in affidavit form are advanced.

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Priestley J