Western Park Village Limited v Baho

[2014] NZHC 102

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-2727 [2014] NZHC 102

BETWEEN  WESTERN PARK VILLAGE LIMITED Plaintiff

ANDSINAN ABED BAHO Defendant

DARRYLL LAWRENCE HEAVEN First Counterclaim Defendant

EVELYN HEAVEN
Second Counterclaim Defendant

TRUSTEE MANAGEMENT LIMITED Third Counterclaim Defendant

Hearing:                   29, 30, 31 July, 1, 2, 3, 19 and 20 August 2013

Counsel:                  D Chesterman for Plaintiff and Counterclaim Defendants

J E M Lethbridge for Defendant/Counterclaimant

Judgment:                10 February 2014

JUDGMENT OF HEATH J

This judgment was delivered by me on 10 February 2014 at 4.30pm pursuant to Rule

11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Dyer Whitechurch, PO Box 5547, Wellesley Street, Auckland
Grove Darlow & Partners, PO Box 2882, Auckland

Counsel:

D Chesterman, Bankside Chambers, Level 22, 88 Shortland Street , Auckland

WESTERN PARK VILLAGE LIMITED v BAHO [2014] NZHC 102 [10 February 2014]

[1]      This proceeding was heard in July and August 2013.   In December last, I indicated that I expected to give judgment by mid February 2014.  Although I have reached a firm conclusion as to the outcome, the delay has resulted from preparation of my reasons for judgment.

[2]      Today, the Registrar referred to me a without notice application by Mr Baho for the issue of an interim charging order.  Rather than deal with that application, I have decided to issue a result judgment today, with reasons to follow shortly.   I expect the reasons will be available next week.

[3]      For reasons to be given:

(a)       Judgment is entered in favour of Mr Baho on all of Western Park’s

claims against him.

(b)On Mr Baho’s counterclaim against Western Park and the three counterclaim defendants, judgment is entered against each in the sum of $301,698.87, together with interest at the rate of 19% per annum from 21 December 2011 to today’s date.

(c)      Leave  to  amend  the  Statement  of  Claim  to  include  a  claim  for possession   of  the  property  at   4/30  Augustus  Terrace,   Parnell, Auckland is granted.   That aspect of the claim is adjourned for a telephone conference to be allocated by the Registrar, on the first available date after 4 April 2014.  If the judgment sum is not paid to Mr Baho by 5pm on 21 March 2014, I shall hear from counsel at the telephone conference on whether a possession order should be made.

(d)      Costs are reserved.

[4]      Any submissions on whether a possession order should be made and on costs shall be filed and served no less than five working days (in the case of Mr Baho) and two working days (in the case of Mr Heaven and the counterclaim defendants) prior to the scheduled conference.

[5]      To assist counsel, notwithstanding a claim for indemnity costs, I have formed a provisional view that one set of costs should be awarded in favour of Mr Baho on a

2B basis, together with reasonable disbursements.   If counsel wish to put forward submissions on costs on a different basis, they should do so in the memoranda I have directed.   Such memoranda shall be no longer than five pages in length.   I will determine whether to fix costs following the telephone conference.  If not, a further hearing will be arranged.

[6]      Mr Baho is released from his undertaking not to take further steps to enforce his mortgage.  While questions of possession and costs remain outstanding, Mr Baho may seal the balance of the judgment.

[7]      If there were any aspects of the without notice application that counsel for Mr Baho wishes to pursue, she shall serve the papers on the solicitors for Mr Heaven and the counterclaim defendants and advise the Registrar in writing by 5pm on 12

February 2014.  If the Registrar has not received written advice (including by email)

to that effect by that time, the application shall stand dismissed.

P R Heath J

Delivered at 4.30pm on 10 February 2014