|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of New Zealand Decisions |
Last Updated: 1 August 2018
|
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
|
|
CIV-2018-409-000306
[2018] NZHC 1824 |
|
BETWEEN
|
ANDREAS VINCENZ LAGEDER
Appellant
|
|
AND
|
CHRISTCHURCH CITY COUNCIL
Respondent
|
|
Hearing:
|
19 July 2018
|
|
Appearances:
|
Appellant in Person
A M Hutton for Respondent
|
|
Judgment:
|
23 July 2018
|
JUDGMENT OF VENNING J
This judgment was delivered by me on 23 July 2018 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date...............
Solicitors: SB Law, Christchurch Copy to: Appellant
LAGEDER v CHRISTCHURCH CITY COUNCIL [2018] NZHC 1824 [23 July 2018]
Introduction
[1] On 2 November 2016 the Christchurch City Council (the Council) obtained a default judgment against Mr Lageder. The judgment was for fees incurred during the processing of a resource consent application that had been lodged with the Council by surveyors Fox and Associates acting on behalf of Mr Lageder. The fees were
$5,483.50. Mr Lageder had previously paid $1,550 on account. Judgment was entered for the outstanding balance of $3,933.50 (including GST) together with costs.
[2] After entry of judgment Mr Lageder applied to the District Court to set aside the judgment. The application was filed on 30 November 2016. In a decision delivered on 20 April 2018 Judge T J Gilbert in the District Court at Christchurch dismissed Mr Lageder’s application to set aside the default judgment.1 Mr Lageder now appeals to this Court against the judgment of Judge Gilbert. He seeks to have the appeal allowed and the default judgment set aside. He wishes to challenge the fees charged to him by the Council.
Background
[3] Mr Lageder owns a property at School Road, Robinsons Bay. In late 2014 he was interested in pursuing a boundary adjustment to remove his existing house and related land associated with the residence from his farm land. On 10 September 2014 Fox and Associates provided a letter and estimate to Mr Lageder regarding the proposed scope of works.
[4] The estimate included reference to the following outcomes:
It went on to provide:
“WHAT FOX AND ASSOCIATES WILL DO FOR YOU”
1 Lageder v Christchurch City Council [2018] NZDC 7572.
Later, in the report it recorded:
COUNCIL/LINZ FEES
These expenses are in addition to our fees – the final costs will be listed in the local authority consents and are GST inclusive.
Council Application Fee – minimum charge...........................$ 2,050.00
[5] On 12 September Mr Lageder signed an Acceptance of Contract with Fox and Associates, the terms of which included that he:
[6] On 9 February 2015 Mr Dewar, a surveyor with Fox and Associates, filed an application for a resource consent in relation to the property with the Council. The application for resource consent noted: “The applicant is responsible to the Council for all costs associated with its application”.
[7] On 15 April 2015 Mr Lageder paid a deposit of $1,550 on account of the consenting fees. His application was then processed. The application involved a site visit, general assessment of the application and discussion with various consultants about geotechnical and environmental issues.
[8] The Council requested Mr Lageder to obtain the written approval of neighbouring properties in order to avoid a limited notification of the application. It appears one or more of the neighbours did not consent. For one reason or another, which it is unnecessary to go into for the purposes of dealing with this appeal, the proposal was not advanced further.
[9] On 19 April 2016 the Council issued an invoice to Mr Lageder for fees incurred for processing his application. The fees totalled $5,483.50. Less the deposit of $1,550 that left a balance of $3,933.50.
[10] Mr Lageder failed to pay that amount. The Council issued proceedings in the District Court on 7 September 2016. The claim was served on Mr Lageder on 19 September 2016. The notice of proceeding contained the usual advice that:
[u]nless, within 25 working days after the date on which you are served with this notice is served upon you, you file in this registry of this court a statement of your defence to the Plaintiff’s claim ... the plaintiff may proceed to a hearing and judgment on its claim in your absence.
[11] Mr Lageder did not file a statement of defence. As a result, on 2 November 2016 judgment by default was entered under r 15.7 of the District Court Rules 2014. Costs and disbursements calculated on a 1A basis totalling $1,660.55 were also ordered.
The District Court judgment
[12] In his judgment Judge T J Gilbert noted that the principles applying to an application to set aside a default judgment that had been obtained in regular fashion were set out in Paterson v Wellington Free Kindergarten Association Inc as follows:2
(a) Is there a substantial ground of defence available to the person seeking to set aside the default judgment?
(b) Is the failure to file a statement of defence reasonably explained?
(c) Would setting aside the judgment cause “irreparable injury” to the plaintiff?
[13] The Judge readily concluded that the final consideration was not a relevant one in the present case. The Council would clearly not suffer irreparable damage in the event judgment was set aside.
[14] However, the Judge considered that Mr Lageder had failed to demonstrate there was a substantial or indeed any, ground of defence. He had authorised Fox and
2 Paterson v Wellington Free Kindergarten Association Inc [1966] NZLR 975 at 938.
Associates to lodge the resource consent application as his agent and the fees had been incurred by the Council.
[15] The Judge went on to consider the factors raised by Mr Lageder to explain his failure to file a defence. They were:
(a) he had other commitments, such as removing, digging out and disposing of a 53 m long hedge and building two new paling fences at one of the rental properties he owned;
(b) he was under medical advice relating to stress brought on by the emotionally draining circumstances;
(c) he was in the Philippines having a dental implant procedure between 14 and 25 October 2016; and
(d) he misunderstood his obligation to file a statement of defence within 25 working days and was waiting for the allocation of a hearing date.
[16] The Judge considered that Mr Lageder’s delay in filing a statement of defence was not reasonably explained by the factors he raised, either individually or cumulatively.
[17] The Judge therefore declined the application.
This appeal
[18] Mr Lageder appeals. In support of the appeal he challenges a number of the findings of the Judge. Mr Lageder’s submissions effectively traverse matters of evidence. The principal matter Mr Lageder takes issue with is the Judge’s finding that the application for resource consent was lodged with his approval. He says he had never applied for a subdivision because all that he had discussed with the surveyor was a boundary adjustment above the existing house, keeping about 1.44 ha for the residence only. Subsequently in late October 2014 he received a call from Mr Dewar
and was advised the Council would treat that as a subdivision. He says he was not happy about that U-turn and that the Judge overlooked that.
[19] Mr Lageder emphasised that he had not signed the application for resource consent subsequently lodged with the Council. He said that he had never authorised Fox and Associates to act as his agent or secretary in signing documents on his behalf or in incurring costs on his behalf with the Council.
[20] Mr Lageder also takes issue with the Judge’s record that there was a meeting on site. He says he attended a meeting in Christchurch.
[21] Mr Lageder also challenged the Court judgment costs of $1,660.55. He submitted if the judgment had been entered by default and no Judge was actively involved the costs were not justified.
[22] Mr Lageder next submitted he had reasonable grounds for not filing a defence and the Judge was wrong to dismiss them.
[23] In the course of his submissions to the Court Mr Lageder canvassed a number of other complaints he had concerning the Council. They are not, however, relevant to this appeal.
Decision
[24] Judge Gilbert correctly summarised the applicable principles. The first consideration is whether Mr Lageder has a substantial ground of defence. Mr Lageder’s defence is that Fox and Associates were not his agent and were not authorised to incur costs with the Council on his behalf.
[25] Mr Lageder is correct that the Fox and Associate’s estimate letter does not expressly refer to the word “agent” but it expressly authorised them to take certain steps in relation to the resource consent, including submitting an application to the Council. Mr Lageder was obviously aware that Fox and Associates had made an application for resource consent to the Council. That is apparent from a number of
emails. It is sufficient to refer to one of 9 February 2015. Mr Lageder sent an email to Phil Dewar at Fox and Associates:
Hi Phil
Thank you for that E-mail,.. ok, so we are going a head, using the existing water- supply for the application, ...
[26] Further on or about 15 April 2015 Mr Lageder paid the $1,550 as deposit to be set against and on account of the fees the Council would levy processing the application. This is some months after the application had been filed. That is further evidence that he intended to pursue the application or had at least authorised it.
[27] In short, the express terms of the estimate agreed to by Mr Lageder authorised Fox and Associates to submit an application to the Council. His subsequent actions confirmed that authority.
[28] The difficulty for Mr Lageder is that even if Fox and Associates had arguably exceeded their authority that would be a matter between that firm and Mr Lageder. It is not a matter that affects the Council. The Council received an application from the surveyors purporting to act on behalf of Mr Lageder. There was correspondence with Mr Lageder and further meetings with Mr Lageder regarding the proposal submitted which, while Mr Lageder may have complained about how matters were developing, did not suggest that the surveyors had lacked authority to submit the application to the Council. Mr Lageder engaged with the Council about a number of issues associated with the application.
[29] The Council was entitled to deal with the application for resource consent lodged by Fox and Associates on the basis it was lodged with Mr Lageder’s authority. Actual authority can be implied. It is not necessary that the word “agent” be expressly referred to. Actual authority could be inferred from the conduct of Fox and Associates and Mr Lageder in their dealings with the Council after the lodging of the application for resource consent.3
3 Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 at 583, [1967] 2 All ER 14.
[30] Alternatively, Fox and Associates had ostensible or apparent authority as it appeared to the Council.4 Mr Lageder clothed Fox and Associates with authority to deal with the Council. If they have exceeded that authority then, as Judge Gilbert observed, that is a matter for Mr Lageder and Fox and Associates. It is not a matter that the Council needed to concern itself with, or which affects the Council’s rights against Mr Lageder.
[31] Mr Lageder also says he never wanted to pursue a subdivision, just a boundary adjustment. However, under the Resource Management Act 1991 the boundary adjustment Mr Lageder sought was a subdivision, and the estimate letter which Mr Lageder accepted, referred to undertaking a subdivision.
[32] Mr Lageder’s complaint regarding the venue of the site meeting is irrelevant.
[33] Next Mr Lageder challenged the costs awarded on the default judgment. The costs were to scale as provided for by the District Court Rules and reflect the steps taken by the Council in issuing the proceedings and obtaining the default judgment. The Council was entitled to costs in accordance with the District Court Rules on a schedule 1A basis, for filing, serving, obtaining and sealing the default judgment. In addition the Council was entitled to the disbursements including filing fees.
[34] Mr Lageder has not been able to identify an arguable ground of defence to the Council’s claim.
[35] The remaining relevant consideration is his explanation for the delay. For the reasons given by Judge Gilbert at [29]-[36] of his judgment I agree that Mr Lageder’s explanations for not filing a statement of defence were not reasonably explained. The fact that Mr Lageder had other commitments, which included physical work and repairs to rental properties, does not excuse him ignoring or failing to take steps to file a defence. As for the medical advice and stress as the Judge noted the evidence is the appointment with the doctor was 31 October 2016 by which time the filing for a statement of defence (25 October) had expired. Further, despite whatever medical issues Mr Lageder had he was apparently able to carry out physical work and also
4 Cromwell Court Ltd v Sofrana Immobilier (NZ) Ltd (1992) 6 NZCLC 67,997.
travel to the Philippines for dental work. Mr Lageder had time to address the issues between 19 September and 14 October. The Judge was also entitled to reject Mr Lageder’s contention that he did not understand the obligation to make a reply within 25 working days. Even if the Judge was wrong in suggesting Mr Lageder was a Dutch immigrant, the notice of advice was quite clear. The relevant point is that Mr Lageder has been in New Zealand for a number of years.
[36] Mr Lageder has not provided a reasonable explanation for failing to file a defence.
[37] In Caltex Oil (NZ) Ltd v McIntosh, Eichelbaum J suggested that after considering the above factors the Court should stand off and consider the question of miscarriage of justice in a broad way.5 In doing so, I am satisfied the Judge was correct to reject the application to set aside.
Result
[38] The appeal is dismissed.
[39] Mr Lageder is to pay costs on the appeal on a 1B basis together with disbursements as fixed by the Registrar.
Venning J
5 Caltex Oil (NZ) Ltd v McIntosh HC Napier CP123/87, 10 November 1988.
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/cases/NZHC/2018/1824.html