Zhang v Guan

[2018] NZHC 841

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2217

[2018] NZHC 841

UNDER

the Declaratory Judgments Act 1908 and the Property Law Act 2007

BETWEEN

QUANGLI ZHANG

Plaintiff

AND

ZUNLONG GUAN

First Defendant

HUANRUI LIU
Second Defendant

JING JIANG
Third Defendant

ZENGMIN HOU

Fourth Defendant

Hearing:

On the papers

Appearances:

E J Werry for the Plaintiff

C Jiang for the Second and Fourth Defendants M Lenihan for the Third Defendant

Judgment:

27 April 2018

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 27 April 2018 at 5:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

ZHANG v GUAN [2018] NZHC 841 [27 April 2018]

Application for judgment by default

[1]    On 17 July 2017 the plaintiff filed an application, by memorandum, for judgment by default against the first defendant. The application is in the memorandum dated 11 July 2017. This application was accompanied by a draft of the judgment sought.

[2]    Judgment was sought by default for reasons set out in adequate detail in a further memorandum for the plaintiff dated 4 April 2018. The most relevant court orders, relating to the first defendant, are the following:

(a)On 19 May 2017 Duffy J made various orders, one of which was that the first defendant file and serve a statement of defence by 26 May 2017. This order is recorded in the Judge’s minute of 19 May 2017 at [4](c).

(b)The defendant did not file a statement of defence at any time up to 14 June 2017. On 14 June 2017 there was a further order that the first defendant file and serve a statement of defence by 5 July 2017, otherwise he would automatically be debarred from defending the claim. This is recorded in a minute of Duffy J dated 14 June 2017 at [3].

(c)There has been no compliance down to the present time with the order to file the defence, and no other steps have been taken by the defendant in this proceeding since the cut-off date of 5 July 2017.

[3]    I note, for completeness, that there is an affidavit of service of the proceeding and related documents on the first defendant on 13 September 2016. There is no doubt that the defendant had full notice of the proceeding because on 14 October 2016 the first defendant filed an application to stay or dismiss the proceeding. The first defendant failed to advance that application and that is what led to the orders made by this Court on 19 May and 14 June 2017.

[4]    The plaintiff’s application was put before me, as Duty Judge, on 24 April 2018. I do not know why the application for judgment by default was not dealt with reasonably soon after the application was filed.

[5]    The plaintiff’s memorandum of 4 April 2018 (noted above at [4] and also referred to me on 24 April 2018), was filed in support of a without notice application by the plaintiff for leave to discontinue the proceedings against all defendants except the first defendant. This prompted a restrained request for action on the application for entry of the default judgment.

Decision on the application for judgment by default

[6]    The plaintiff is entitled to judgment by default against the first defendant. Judgment by default may be entered against the first defendant on the terms contained in the draft judgment filed on 17 July 2017.

[7]    The draft judgment includes an order for the first defendant to pay interest to 10 July 2017. The plaintiff has leave to apply for a supplementary judgment for interest from 10 July 2017 down to the date of entry of the primary default judgment. If the plaintiff seeks further interest up to the date of entry of the primary judgment, the application should be accompanied by a short memorandum recording the basis for the claim.

Application without notice for leave to discontinue against the other defendants

[8]    The proceeding continued against the second, third and fourth defendants and has been set down for hearing commencing on 5 June 2018. The plaintiff has now settled with the second, third and fourth defendants. There are consents from the second, third and fourth defendants to discontinuance by the plaintiff.

[9]    The plaintiff has sought leave because of r 15.20(4) of the High Court Rules. This is directed to discontinuance where there is more than one defendant. Unless the plaintiff has the consent of all defendants, discontinuance may not occur without the leave of the Court. The plaintiff does not have the consent of the first defendant.

[10]   I am satisfied leave should be granted. This is for the reasons recorded above in relation to the defaults by the first defendant and the final order debarring him from defending, and given the fact that there are no claims by the first defendant against the other defendants.

[11]   I am also satisfied that this application is properly made without notice to any of the defendants.

[12]   Consequently, there is an order granting leave to the plaintiff to discontinue against the second, third and fourth defendants.

[13]   Presumably the fixture commencing on 5 June 2018 should be vacated, but there does not appear to be a formal request for that to occur. Out of an abundance of caution a scheduling officer should check the position with Mr Werry.

Woodhouse J

Solicitors / Counsel:

Mr E J Werry, Barrister, Auckland

Mr E Chen (plaintiff’s instructing solicitor), Yu Lawyers, Auckland Mr C Jiang, Glaister Ennor, Auckland

Mr M Lenihan, Barrister, Auckland

Mr P Zheng (third defendant’s instructing solicitor), Northern Legal, Auckland