Williams v van Loghem Investments Ltd - [2012] NZHC 829

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2008-404-5241 [2012] NZHC 829

BETWEEN PAUL KEVIN WILLIAMS AND VICTORIA CATHERINE WILLIAMS PlaintiffS

ANDVAN LOGHEM INVESTMENTS LTD First Defendant

ANDPHILIP NOEL VAN LOGHEM Second Defendant

ANDNORTH SHORE CITY COUNCIL Third Defendant

ANDDONALD STEWART TRADING AS DON CONSTRUCTION
Fourth Defendant

ANDBRENDON GORDON ARCHITECTURE LIMITED
Fifth Defendant

ANDDEREK CLIFTON SALTMARSH TRADING AS CLIFTON PLASTERING Sixth Defendant

Hearing: 30 March 2012

Appearances: S J Tee for Applicant, Derek Clifton Saltmarsh
A M E Parlane for Respondent

Judgment: 30 March 2012

ORAL JUDGMENT OF ASSOCIATE JUDGE R M BELL

Solicitors:
Morton Tee & Co, P O Box 331-133 Takapuna 0740, for Sixth Defendant (D C Saltmarsh) Email: stee@mortontee.co.nz

Copy for:
Angela Parlane, P O Box 1846 Auckland 1140, for First Defendant (van Loghem Investments Ltd) Email: angela.parlane@orcon.net.nz

Case Officer:
Email: Shaun.Hindt@justice.govt.nz

WILLIAMS AND WILLIAMS V VAN LOGHEM INVESTMENTS LTD HC AK CIV-2008-404-5241 [30
March 2012]

[1] This is an application to set aside a judgment. The judgment is one given by Andrews J on 13 April 2011 on a formal proof under r 15.12(3) of the High Court Rules. She gave judgment for the respondent, van Loghem Investments Ltd against the applicant, Derek Clifton Saltmarsh, for $436,561.40 made up of a judgment sum of $380,000.00, interest of $43,025.40 and costs of $13,563.00.

[2] Mr Saltmarsh filed this application to set aside on 7 December 2011, after the respondent had taken bankruptcy proceedings against him.

[3] This was leaky building litigation. The leaky building was a house at

10 Frieston Road, Milford, Auckland. Van Loghem Investments Ltd was the developer who built the house in 2001. It sold the house to the plaintiffs, Mr and Mrs Williams, in 2002. In 2008, the plaintiffs began this proceeding against van Loghem Investments Ltd, suing on clause 6.3(5) - the warranty as to compliance with the Building Code in the standard Auckland District Law Society and New Zealand Real Estate Institute agreement for sale and purchase.

[4] Initially van Loghem Investments Ltd was the only defendant. It joined third parties: the North Shore City Council, the local authority, Mr Donald Stewart, the building contractor, Brendon Gordon Architecture Ltd, the architect and Mr Saltmarsh. Mr Saltmarsh was the director of a plastering company. The plastering company has since been struck off the Companies Register.

[5] Mr Saltmarsh was named as fourth third party. Later, the plaintiffs had all the third parties added as defendants to the proceeding. In addition they sued Mr van Loghem personally as director of the development company. Mr Saltmarsh then became sixth defendant. For convenience, I refer to Mr Saltmarsh as “the applicant” as the person applying to set aside judgment. I refer to van Loghem Investments Ltd as “the respondent” to that application.

[6] In its statement of claim against the third parties, van Loghem Investments Ltd claimed against Mr Saltmarsh as a concurrent tortfeasor under s 17 of the Law Reform Act 1936 and claimed indemnity or contribution. Mr Saltmarsh was…

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.

Keep reading for free

Create a free CaseChat account to read Williams v van Loghem Investments Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] NZHC 829
Decision Date: 30 March 2012

CaseChat Overview and Summary

This case concerns an application to set aside a judgment obtained by default in leaky building litigation. The applicant, Mr Derek Clifton Saltmarsh, was a plasterer involved in the construction of a leaky building in Milford, Auckland. The plaintiffs, Mr and Mrs Williams, sued the developer, van Loghem Investments Ltd, over defects in the building. Van Loghem Investments Ltd then sought contribution from Mr Saltmarsh, who did not defend the proceeding. Judgment was obtained against Mr Saltmarsh by default in the amount of $436,561.40, which included $380,000 in damages, interest and costs. Mr Saltmarsh applied to set aside the judgment after being served with a bankruptcy notice.

The court considered whether the judgment was obtained regularly and whether there had been a miscarriage of justice warranting the setting aside of the judgment. The court found that the judgment was obtained regularly, as Mr Saltmarsh was duly served with proceedings and given ample notice of the formal proof hearing. However, the court also considered whether there had been a miscarriage of justice. The court found that while Mr Saltmarsh had a substantial ground of defence, the delay in taking steps was not reasonably explained and that the plaintiff would suffer irreparable injury if the judgment was set aside. The court concluded that there had not been a miscarriage of justice and dismissed the application to set aside the judgment, reducing the amount of interest awarded.

The court emphasised that parties who elect not to defend proceedings and take a risk that judgment may be given against them cannot later complain if the result is different from what it might have been had they actively defended the case. The court found that setting aside the judgment would cause significant prejudice to van Loghem Investments Ltd and others who had settled the matter. The court therefore dismissed the application to set aside the judgment but varied the amount of interest awarded.

Orders