Simpson v He DC Wellington CIV-2011-085-866 [2012] NZDC 1768 (24 October 2012)

Last Updated: 27 September 2016

IN THE DISTRICT COURT AT WELLINGTON

_{CIV-2011-085-000866}

BETWEEN ROGER KENNETH SIMPSON Applicant

AND HELEN HE JANE HE Respondents

Hearing: 24 October 2012

Appearances: Applicant appears in Person

M Pinfold for the Respondents

Judgment: 24 October 2012

_{ORAL JUDGMENT OF JUDGE S E THOMAS}

[1] Mr Simpson applies to have judgment against him set aside, and that is opposed by the respondents.

[2] The background to the matter is as follows. The respondents are the landlord of premises in central Wellington. The applicant, Mr Simpson, was, together with his son, Edward Simpson, trading as Simpson Enterprise, the tenants of those premises.

[3] By a notice of claim the landlords claimed for unpaid rent and water rates for the premises. A demand was made in September 2011 and the amounts remained unpaid, according to the notice of claim.

[4] A notice of defence should have been served by 20 December 2011. No notice of defence was served. The landlord respondents applied for a judgment on

_{1 March 2012 and judgment was obtained.}

SIMPSON V HE & ANOR DC WN CIV-2011-085-000866 [24 October 2012]

[5] Mr Roger Simpson applies to have judgment against him set aside. I note there is no similar application by Mr Edward Simpson.

[6] The basis for the application seems to be that Mr Simpson believes he did respond to the notice of claim. He says that a letter was sent to the plaintiffs’ address for service at about four minutes before five on 20 December 2011. In his affidavit Mr Simpson has attached various printouts which he says came from the Ministry of Justice website, detailing the difficulties he says he had in completing a notice of defence. He accepts today that those printouts were made relatively recently. He explains that he did not realise that the notice of defence form on the website could not be saved once completed. He said he had completed it but then could not save it. He says today he made various enquiries with the Masterton Court and community law centres as to what he should do. He says it was for that reason that he wrote the letter and made sure it was served on the landlord respondents.

[7] So there are two issues for me to determine today. The first is whether in fact the applicant today, Mr Simpson, did respond to the plaintiffs’ claim in accordance with the District Court Rules, and the second question is, if I am satisfied that he did not, whether the judgment should be set aside because there has been or may have been a miscarriage of justice.

[8] So I turn to consider the first issue, and that is whether Mr Simpson has in the time allowed in the District Court Rules served on the landlords a response to the landlords’ notice of claim.

[9] Rule 2.13 of the District Court Rules provides that a defendant’s response must be in form 3, so the first point is that the letter which was sent to the plaintiffs was not, it is acknowledged, in form 3. Mr Simpson explains that by saying he did not understand that he could not save a PDF from the Ministry of Justice website. Of course, he could have printed it out immediately. The second course is he could have requested the Court to have printed out such a form. The third point is that he could have explained to the plaintiffs in the letter that he did send why the response was not in the required form. He did not. He could also have applied for an extension of time, but he did not.

[10] In any event, even if there was some reason to accept that the response was not in the required form, I turn to consider whether in any event the contents of his letter did meet the requirements of rule 2.13.1, which requires that the defendant’s response must admit the claim, or admit the claim but offer an alternative remedy, or deny the claim, or partially admit and partially deny the claim. It is of note that pursuant to rule 2.6 of the District Court Rules, any fact not denied in response is deemed admitted.

[11] I turn to consider Mr Simpson’s letter and, as I put it to Mr Simpson today, I have real difficulty in understanding what is said in that letter. The letter does discuss the unpaid rent, maintains that the rent was far too high, talks about some problems with the state of repair of the premises, and discusses some problems with the fact that the water rates were levied on the whole building. It then refers to an alleged conversation with a real estate agent acting on behalf of the respondent landlords, saying that he was grateful that the tenant, both the Simpsons, left some items in the premises. It also notes that “We,” the letter being on behalf of Roger Simpson only, “Would be seeking compensation from the landlord for the hurt, pain, loss of esteem, embarrassment, loss of trading et cetera.”

[12] But all in all, I am not satisfied that, even if there were some reason why the response was not in the required form, it did in any event comply with the requirements for a response in the District Court Rules, that is, it leaves the reader unclear as to exactly what the position was. To be fair to Mr Simpson, he has today implicitly accepted the position, that is, that he had not paid the rent and he had not paid the water rates. He says the rent was far too high, notwithstanding the fact that it was set before he and his son took over the premises and, it seems, and it is acknowledged today by Mr Simpson, that the real issue on his part is that he cannot pay the arrears. That, of course, is not a defence.

[13] He accepts that there was a responsibility to pay the rent and he could not do so. He says that he had hoped that by leaving the tenant’s fixtures and fittings in the premises, that that went some way towards reimbursing the landlord for unpaid rent. He also explains that he is a sickness beneficiary and he has some mental health

issues which make this type of situation difficult for him. He has found it a very stressful exercise, starting with service of the notice of claim on him.

[14] So that brings me to the second issue, having determined that, within the required time, Mr Simpson did not serve a response on the plaintiff. And the second issue is whether there has been or may have been a miscarriage of justice such that the judgment should be set aside.

[15] The approach in assessing that question requires me to consider whether Mr Simpson has a substantial ground of defence, whether any delay is reasonably explained, and whether the landlord will suffer irreparable injury if the judgment is set aside.

[16] Ms Pinfold for the respondent accepts that the landlord will not suffer any irreparable injury. The delay is not really the issue today. The real question is whether Mr Simpson has a substantial ground of defence, and I acknowledge and give him credit for this, that he has been up front in his acceptance to the Court that there is no real ground of defence. The reality is that the arrangement between the landlord and tenant was in the terms of a standard commercial lease. It requires rent to be paid without set-off or deduction. It requires a tenant vacating the premises to remove the tenant’s fixtures and fittings and make good any damage caused by removal. It requires the tenant to pay water rates. It requires any outgoings assessed on the whole premises to be apportioned, and the affidavit from Helen He on behalf of the landlord attaches to it various emails showing that the tenants of the building agreed that they would each pay a one-third share of the water rates.

[17] So even if there was any discussion between Mr Simpson and the real estate agent about items left in the premises, it does not alter the fact that pursuant to the lease the landlord is entitled to judgment for unpaid rent with interest at the prescribed rate, and that the tenant did not comply with his obligations so far as removal of items and making good any damage is concerned, and is not entitled to have those items set off against the amount of any unpaid rent.

[18] I record my sympathy for Mr Simpson’s situation. However, the legal position is clear. It was a commercial arrangement governed by a commercial lease. The terms of the lease are clear and the lease was not complied with. The landlord is entitled to judgment as has been sought and obtained by the landlord. The tenant, as is acknowledged, obviously, by Mr Simpson’s son and has been acknowledged, really, by Mr Simpson today, has no defence to the claim.

[19] For those reasons, the application to set aside judgment is refused. The very real question for Mr Simpson is whether any satisfactory form of arrangement can be entered into with the landlord in respect of the liability.

[20] In the usual course of events the unsuccessful party must pay the costs of the successful party. It is clear in this case that Mr Simpson is in severely straitened financial circumstances. There is going to have to be some form of arrangement reached in respect of the existing liability. There seems no point in the circumstances in making another financial award against Mr Simpson. Costs are always at the discretion of the Court, and I make no award for costs today, for the simple reason that, clearly, Mr Simpson cannot afford to pay his existing liability, let alone any additional. For those reasons, no costs are awarded.

S E Thomas

District Court Judge