NEUMAYER & ANOR v KAPITI COAST DISTRICT COUNCIL & ORS HC WN CIV 2012-485-2677

NEUMAYER & ANOR v KAPITI COAST DISTRICT COUNCIL & ORS HC WN CIV 2012-485-2677

Because the claims against the second and third defendants are unliquidated Rule 15.9 applies and mandates formal proof and affidavit evidence rather than immediate entry of judgment; given the defendants' default they are debarred from filing a statement of defence without leave; accordingly the application for entry of judgment by default was dismissed while preserving the option to apply for formal proof.

Citation
openlaw-9c90b3e3_3356_4988_9545_977f5c916f8d.pdf
Parties
Plaintiffs: Sebastian Neumayer and Ladene Raina Neumayer; First Defendant: Kapiti Coast District Council; Second Defendant: New Century Real Estate Limited; Third Defendant: Klaus Tamerler
Court
High Court
Jurisdiction
New Zealand
Judgment Date
15 May 2013
Procedural Posture
Civil Property/building Defects (leaky Home), Misrepresentation / Application for Judgment by Default (high Court Rules Part 15, Rule 15.9) Interlocutory
Outcome
Application for entry of judgment by default dismissed; second and third defendants debarred from filing a statement of defence without leave
Legal Topics
Default Judgment, Contribution, Leaky Homes, Service of Proceedings, High Court Rules 15.9, Substituted Service
Civil Procedure Tort Misrepresentation Property Law Building Defects Default Judgment Contribution Leaky Homes +3 more

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Parties

Sebastian Neumayer and Ladene Raina Neumayer

Plaintiffs

Kapiti Coast District Council

First Defendant

New Century Real Estate Limited

Second Defendant

Klaus Tamerler

Third Defendant

Procedural Posture

Civil Property/building Defects (leaky Home), Misrepresentation / Application for Judgment by Default (high Court Rules Part 15, Rule 15.9) Interlocutory

Legal Issues

  1. 1 Whether judgment by default under High Court Rules Part 15 (Rule 15.9) should be entered against the second and third defendants
  2. 2 Whether Rule 15.9 (formal proof for unliquidated claims) applies rather than immediate entry of judgment under Rule 15.7
  3. 3 Whether the second and third defendants are debarred from filing a statement of defence without leave

Ratio Decidendi

Because the claims against the second and third defendants are unliquidated Rule 15.9 applies and mandates formal proof and affidavit evidence rather than immediate entry of judgment; given the defendants' default they are debarred from filing a statement of defence without leave; accordingly the application for entry of judgment by default was dismissed while preserving the option to apply for formal proof.

Court Disposition

Application for entry of judgment by default dismissed; second and third defendants debarred from filing a statement of defence without leave

Orders

  • Application for entry of judgment by default dismissed.
  • Second and third defendants may not file a statement of defence without leave of the Court.