Wong v Selfe - [2017] NZHC 610

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000600 [2017] NZHC 610

BETWEEN
SHUN LEE RONNIE WONG

First Plaintiff

AND

SUET LIN SHIRLEY TANG Second Plaintiff

AND

DAVID LEEROY SELFE First Defendant

AND

KIRSTEN LEONIE SELFE Second Defendant

Hearing: 16 November 2016

Appearances:

S Chan for the Plaintiffs
Defendants in Person

Judgment:

30 March 2017

JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 30 March 2017 at 3.30 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date.......................................

Solicitors:

Forest Harrison, Auckland

WONG & Anor v SELFE & Anor [2017] NZHC 610 [30 March 2017]

Introduction

[1] The applicants, David and Kirsten Selfe, apply to set aside a summary judgment entered against them on 17 May 2016 for $213,575 for unpaid rent and outgoings, following a hearing at which they did not appear.

[2] The respondents, Shun Lee Ronnie Wong and his wife, Suet Lin Shirley Tang, oppose the application. They say the judgment, which was made on their claim against the applicants, should stand.

[3] The application to set aside the summary judgment is declined. For reasons that are set out in this judgment I am satisfied that the summary judgment was not irregularly obtained, and that there is no tenable defence to the claim for unpaid rent and outgoings. There has been no miscarriage of justice.

Background

[4] The respondents are the registered proprietors of premises located in Browns Bay on Auckland’s North Shore. They bought the premises in 2012 from the previous owner. They also acquired the reversion of a lease of the premises that the former owner had granted in 2009 to Ardern Holdings Limited in December 2009.

[5] Ardern Holdings is now in liquidation, but before its demise it operated the Corelli Performing Arts School at the premises. The applicants were the directors of Ardern Holdings and the principals of the school. They provided a written guarantee for a year’s rent and outgoings payable under Ardern Holdings’ lease; and under this guarantee they are treated as the principal debtors.

[6] In May 2015, Ardern Holdings defaulted on its payment obligations under the lease. Eventually, the unpaid rent and outgoings formed the basis for different but related proceedings: liquidation proceedings against Ardern Holdings; the summary judgment proceedings against Mr and Mrs Selfe as guarantors to which the present application relates; and bankruptcy proceedings against Mr and Mrs Selfe. I pause to refer to each set of proceedings.

[7] On 9 December 2015, the respondents served Ardern Holdings with a statutory demand for $118,138.48 for the shortfall in rent and outgoings for the period from 1 June to 8 December 2015. Ardern Holdings failed to comply with the demand, and on 29 January 2016 the respondents commenced proceedings to have it placed into liquidation.

[8] On 29 January 2016 Ardern Holdings sought an adjournment of the liquidation proceedings on the grounds that the applicants had arrangements for a third party to meet the statutory demand. The matter was adjourned…

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.

Continue reading Wong v Selfe

Details

AGLC: Wong v Selfe [2017] NZHC 610
Case: [2017] NZHC 610
Decision Date: 30 March 2017

CaseChat Overview and Summary

The applicants, David and Kirsten Selfe, sought to set aside a summary judgment entered against them for $213,575 for unpaid rent and outgoings. The respondents, Shun Lee Ronnie Wong and Suet Lin Shirley Tang, opposed the application, arguing that the summary judgment should stand. The application was declined. The court found that the summary judgment was not irregularly obtained, and that there was no tenable defence to the claim for unpaid rent and outgoings. The applicants did not have a substantial ground of defence, and the court found that the delay in bringing the application was not reasonable. The court also found that the respondents would suffer irreparable harm if the summary judgment was set aside. As a result, the application to set aside the summary judgment was dismissed, and the applicants were ordered to pay costs on their failed application.

Orders