A KUNG v E WICHMAN, D A FITTON AND ASB BANK LIMITED [2013] NZHC 2587

A KUNG v E WICHMAN, D A FITTON AND ASB BANK LIMITED [2013] NZHC 2587

The Court exercised its discretion to set aside the judgment as to quantum because the second defendant provided an adequate explanation for delay, demonstrated a substantial ground of defence on quantum, and the plaintiff would not suffer irreparable prejudice; the judgment as to liability was retained.

Citation
[2013] NZHC 2587
Parties
Plaintiff: Allan Kung; First Defendant: Elijaah Wichman; Second Defendant: David Arthur Fitton; Third Defendant: ASB Bank Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
4 October 2013
Procedural Posture
Civil Property Dispute (sale of Land, Indemnity, Summary Judgment, Setting Aside) / Application to Set Aside Default Judgment as to Quantum; Interlocutory Directions and Timetable Set
Outcome
Application granted in part: judgment as to quantum set aside; judgment as to liability remains.
Legal Topics
Setting Aside Judgment, Summary Judgment, Settlement Negotiations, Costs, Indemnity, Sale of Land, Undertakings
Property Law Civil Procedure Contract Law Setting Aside Judgment Summary Judgment Settlement Negotiations Costs Indemnity +2 more

Case Brief

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Parties

Allan Kung

Plaintiff

Elijaah Wichman

First Defendant

David Arthur Fitton

Second Defendant

ASB Bank Limited

Third Defendant

Procedural Posture

Civil Property Dispute (sale of Land, Indemnity, Summary Judgment, Setting Aside) / Application to Set Aside Default Judgment as to Quantum; Interlocutory Directions and Timetable Set

Legal Issues

  1. 1 Whether the second defendant has sufficient explanation and meritorious defence to set aside default judgment as to quantum
  2. 2 Whether the plaintiff's unilateral return to court without notice frustrated ongoing commercial negotiations and justifies setting aside
  3. 3 Whether the plaintiff would suffer irreparable prejudice if judgment as to quantum is set aside

Ratio Decidendi

The Court exercised its discretion to set aside the judgment as to quantum because the second defendant provided an adequate explanation for delay, demonstrated a substantial ground of defence on quantum, and the plaintiff would not suffer irreparable prejudice; the judgment as to liability was retained.

Court Disposition

Application granted in part: judgment as to quantum set aside; judgment as to liability remains.

Orders

  • Set aside judgment as to quantum only
  • Judgment as to liability to remain in force