Smith v Renovators Wairarapa Limited DC Masterton CIV-2012-035-44 [2012] NZDC 1993 (30 November 2012)

Last Updated: 27 September 2016

IN THE DISTRICT COURT AT MASTERTON

_{CIV-2012-035-000044}

BETWEEN ALAN JAY SMITH and VICTORIA FRITH SMITH Plaintiff

AND RENOVATORS WAIRARAPA LTD Defendant

Hearing: 30 November 2012

Appearances: J Olds for the Plaintiff

J Garnett appears in Person for the Defendant Company

Judgment: 30 November 2012

ORAL JUDGMENT OF JUDGE S E THOMAS [Application to Set Aside Judgment]

[1] Renovators Wairarapa Ltd, represented by Mr Garnett, have applied for judgment to be set aside. That is opposed by the plaintiff.

[2] The relationship between the parties is one of landlord and tenant, the applicant today being the tenant.

[3] By its notice of claim the plaintiff seeks arrears of rental being approximately

$21,000, and the costs incurred by it of clearing the property of what it terms as debris, estimated at $5,000.

[4] The applicant completed a response raising a number of issues: first of all, that because there was no written agreement to lease, there was nothing enforceable pursuant to the Property Law Act; secondly, that the plaintiff had not fulfilled a term of any agreement to lease, being the need to fence the property; and thirdly, that what

_{the plaintiff called debris is, in fact, bricks which have a value of somewhere}

SMITH V RENOVATORS WAIRARAPA LTD DC MAS CIV-2012-035-000044 [30 November 2012]

between $25,000-$30,000 – the applicant in this case being a demolition and salvage contracting company.

[5] The plaintiff completed its information capsule and served it on the defendant. The defendant’s information capsule was due on 20 July 2012. It was not filed or served.

[6] The plaintiff then applied for judgment on 3 September 2012.

[7] The applicant applied on 18 October 2012 for judgment to be set aside, saying in its affidavit sworn by Mr Garnett that he did not fully understand the process.

[8] The matter came before Judge Broadmore on 26 October 2012. He told Mr Garnett that he had to be able to put forward a reasonable basis for defending the case.

[9] Today I have seen a typed, undated and unsigned statement, but Mr Garnett appears today in support of that. There is also a photocopy of a letter signed by a former employee who says that she witnessed the discussions with the plaintiff concerning the agreement to occupy the premises and that one of the conditions was that the premises be securely fenced. The statement from Mr Garnett also says that he had an agreement with the plaintiff that he would have some time to pick up the bricks from the property – which, as I say, he claims are worth some $25,000-

$30,000.

[10] On behalf of the plaintiff today, Ms Olds accepts that the plaintiff had committed to fence the property. However, the plaintiff says there was no need to do so while there was a dwelling on one boundary; the need for fencing would arise only when that dwelling was removed. Secondly, the bricks were rubble and the plaintiffs considered them abandoned, and the applicant made no effort to remove them, saying he could not afford to do so.

[11] Rule 12.34 District Courts Rules provides that any judgment obtained by default may be set aside or varied by the Court on any terms it thinks fit if it appears to the Court that there has been, or may have been, a miscarriage of justice. In this case I am satisfied that judgment was regularly obtained. The question for the Court today is whether the applicant has a substantial ground of defence, the delays are reasonably explained, and the plaintiff will not suffer irreparable injury if judgment is set aside.

[12] The first issue is that if Mr Garnett, on behalf of the applicant, is going to defend proceedings, he must comply with the rules of the Court. Even today, there is no original documentation on file, although it is obvious that the letter from his former employee was witnessed by the Deputy Registrar of the Court and, indeed, the information which he has put before the Court was substantially in his notice of defence in any event.

[13] There have also been concessions by the plaintiff, essentially agreeing with some of the matters raised on behalf of the applicant; that is, that there was an obligation to fence the property, and that there are still bricks, some of which – the plaintiff accepts – were sold by the plaintiff. To that extent, therefore, the plaintiff has conceded some of the issues raised in the defence.

[14] This is not a case where the applicant had taken no steps at all. It seems that there are issues that need to be addressed by way of a set off / counterclaim in respect of the potential issue of non-fencing of the property. There is then also the issue about ownership of the bricks and whether there was an agreement between the applicant and the plaintiff for them to be moved at a later date.

[15] There is nothing before me which suggests that the plaintiff will suffer irreparable injury if the judgment is set aside.

[16] I am satisfied, therefore, that it is appropriate to set aside judgment.

[17] Mr Garnett, you are to serve your information capsule on the plaintiff within

10 working days.

[18] If the matter cannot be resolved, then I direct that a judicial settlement conference, rather than a short trial, is the appropriate way to proceed.

[19] I make it clear, Mr Garnett, that if the information capsule is not served on the plaintiff within 10 working days, then clearly the plaintiff is going to move for judgment once again, and you will not be given the leniency which I have given you today a second time. Do you understand that? [Yes, Your Honour]

[20] I award costs to the plaintiff on a 1B basis.

S E Thomas

District Court Judge