New Zealand Forex Limited v Hammond DC Blenheim CIV-2012-006-178 [2012] NZDC 1587 (28 September 2012)

Last Updated: 27 September 2016

IN THE DISTRICT COURT AT BLENHEIM

_{CIV-2012-006-000178}

BETWEEN NZ FOREX LIMITED Plaintiff

AND JAMES HAMMOND Defendant

Hearing: In chambers on the papers Counsel: M Edwards for the Plaintiff Judgment: 28 September 2012

DECISION OF JUDGE A A ZOHRAB [as to an interlocutory application]

Introduction

[1] The defendant retained the plaintiff to undertake foreign exchange transactions on his behalf for his benefit and at his direction.

[2] Two transactions were entered into, the result being losses of $9,088.56 which the plaintiff contends the defendant is liable to the plaintiff for.

[3] The plaintiff commenced proceedings in the District Court by way of notice of claim filed on 3 May 2012 seeking payment of the losses, together with interest and costs.

[4] The defendant now requests that the proceedings be transferred to the Disputes Tribunal. The request for transfer is opposed by the plaintiff and the plaintiff seeks judgment given that the defendant failed to file a notice of response

_{within 30 days.}

NZ FOREX LIMITED V JAMES HAMMOND DC BLE CIV-2012-006-000178 [28 September 2012]

Background

[5] The proceedings were commenced in the District Court by way of notice of claim filed on 3 May 2012.

[6] On 8 June 2012 the defendant filed a request to transfer the proceedings to the Disputes Tribunal.

[7] On 20 June 2012 the plaintiff’s solicitors wrote to the District Court by way of email opposing the transfer application on the following grounds:

(a) The defendant had failed to file a notice of response within 30 days and the plaintiff was therefore entitled to seek entry of judgment and intended to do so.

(b) Given the failure to file a notice of response the defendant was no longer entitled to take an active part in proceedings.

(c) In any event, there is no dispute to go to the Disputes Tribunal and the plaintiff wishes to remain legally represented.

[8] On 13 July 2012 the defendant wrote to the District Court responding to the plaintiff’s solicitor’s email advising, amongst other things, that there was a dispute as to disclosure and to the amount owing.

[9] On 14 August 2012 the registrar transferred the proceedings to the Disputes

Tribunal.

[10] On 31 August 2012 the plaintiff’s solicitors wrote to the registrar detailing a

number of matters, but more particularly stating:

(a) The Disputes Tribunal had no jurisdiction to consider the matter as there was no dispute.

(b) There was ample evidence (attached to and detailed in the email) that the defendant had never disputed the debt.

(c) The plaintiff had now made application for entry of judgment by default and was entitled to have judgment by default.

(d) The defendant’s application was a nullity given his failure to file a notice of response.

(e) It was contrary to the interests of justice to transfer the matter to the Disputes Tribunal given the matters raised by the plaintiff in its letter of 20 June 2012.

(f) The order for transfer should be set aside and the registrar should deal with the application for judgment.

[11] On 4 September 2012 the registrar rescinded her original decision and transferred the matter back to the District Court. A teleconference was then scheduled for 18 September 2012 at 9.30am.

[12] Subsequent to the scheduling of the teleconference the defendant wrote to the Court on 14 and 19 September 2012 raising a number of matters, but most significantly attaching an email dated 2 February 2012 in which he stated to the plaintiff that he was “not aware that he would be liable for any shortfall”. In essence, he was taking issue with the plaintiff’s claim that he had never disputed being liable to the plaintiff.

[13] As it appeared to me that there was a real possibility that the plaintiff’s solicitors had not seen the defendant’s correspondence of 14 and 19 September 2012, I convened a teleconference for 27 September 2012 so I could confirm that the plaintiff’s solicitors had received the defendant’s correspondence of 14 and 19

September 2012.

[14] By way of teleconference I spoke with Mr Edwards, who appeared on behalf of the plaintiff, together with the defendant. It appeared to me that the plaintiff’s solicitors had received the defendant’s most recent correspondence.

[15] I also heard very brief argument from the plaintiff’s solicitor and the

defendant and I indicated that I was in a position to make a decision on the papers.

Discussion and decision

[16] The defendant was required to file his notice of response by 15 June 2012. However, on 8 June 2012 he filed a request to transfer the proceedings to the Disputes Tribunal. I have recorded the chronology of the file since that date in the introduction herein.

[17] The amount in dispute between the parties is well within the jurisdiction of the Tribunal. The request to transfer was made prior to the requirement for the filing of the notice of response so it is clear that the defendant intended to defend the matter and had signalled that intention to the registrar prior to the expiry of the period for filing a notice of response.

[18] The issue as to whether or not there is truly a dispute is a live one in this case. The more cynical might suggest that the defendant has “manufactured” a dispute so as to enable the matter to be transferred to the Tribunal. The reason that the more cynical might suggest the evidence has been manufactured is because much of the correspondence seems to suggest his “dispute” was with late receipt of payment on another transaction, and with the legal costs being claimed for preparation of the proceedings. However, more recently the defendant has made available an email dated 2 February 2012 in which he advised the plaintiff of his dispute as to liability.

[19] The plaintiff ’s solicitor’s response, amongst other matters, is that in any event the 30 days has expired with no notice of response filed and accordingly the defendant is effectively without standing to be heard on the matter.

[20] Given that the defendant has been self-represented and that he clearly signalled a desire to defend the matter prior to the need to file a notice of response, and given that there were matters of dispute raised by him, some as early as 2

February 2012, I think it is in the interests of justice that the matter be dealt with in the Tribunal. However, even if the defendant had not made such a request, I would have made the transfer myself given the matters in dispute.

[21] However, I reserve the issue of costs on the proceedings in this Court for the determination of this Court once the Tribunal has issued its decision. Costs are a purely discretionary matter and my final decision as to costs will be heavily influenced by the Tribunal’s finding of fact and whether or not I consider the matters raised by the defendant on the substantive claim as being what might be politely characterised as a “revisionist approach” to events.

A A Zohrab

District Court Judge