AL-DERZI v AL-DERZI [2019] NZHC 1626

AL-DERZI v AL-DERZI [2019] NZHC 1626 [12 July 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2019-404-000051[2019] NZHC 1626BETWEEN FAYHA JASSIM AL-DERZIPlaintiffAND FARIS AL-DERZIDefendantHearing: On the papersCounsel: J D Turner and A Tarabova for the PlaintiffJudgment: 12 July 2019JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Friday, 12 July 2019 at 12:30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: McVeagh Fleming Lawyers, AlbanyBackground[1] On 2 July 2019 the plaintiff filed an application, by memorandum, requestingjudgment by default against the defendant. This application was accompanied by adraft of the judgment sought.[2] The plaintiff seeks an award of the surplus of the net proceeds of sale of amortgaged property under s 185(1)(f) of the Property Law Act 2007. The sum soughtby the plaintiffs amounts to $752,758.01 and all or any accrued interest on it.Law[3] The plaintiff relies on rr 15.4 and 15.7 of the High Court Rules 2016. Rule 15.7provides that when a plaintiff claims payment of a liquidated demand and no statementof defence has been filed within the number of working days required by the notice ofproceeding, the plaintiff may seal judgment for that sum, plus interest, costs anddisbursements. Rule 15.4 provides that an affidavit of service of the statement of claimand notice of proceeding must be filed before a judgment by default can be sealed,along with an affidavit verifying the statement of claim if service was not effectedpersonally on the defendant or its solicitor.Application for judgment by default[4] The property at 130 Coronation Street, Hillcrest, Auckland, was sold in amortgagee sale on 30 August 2018. The surplus sale proceeds are currently held bythe mortgagee, the ASB Bank. The plaintiff is a previous mortgagor of the property.In January 2019, she commenced a proceeding in the Auckland High Court against thedefendant, the other previous mortgagor of the property, for the distribution of themortgagee sale proceeds. The notice of proceeding, dated 21 January 2019, notifiedthe defendant that his statement of defence had to be filed within 25 working days ofbeing served the notice.[5] On 4 June 2019, Associate Judge Andrew granted an application for substitutedservice. He was satisfied that the plaintiff had made reasonable attempts to effectpersonal service on the defendant at his last known address in New Zealand, but thatprompt personal service could not be effected because the defendant apparently residespermanently overseas. Directions were given that service would be deemed to beeffected when the relevant documents were sent to the defendant via email andFacebook Messenger. This order is recorded in the Judge's minute of 4 June 2019.[6] Counsel for the plaintiff confirmed that service was deemed to have occurredon 13 May 2019. The defendant has not since filed a statement of defence and thetime to file a statement has since lapsed. No other steps have been taken by thedefendant in this proceeding.[7] Counsel for the plaintiff has provided that the plaintiff's verified affidavit,dated 11 February 2019, confirms the allegations of her statement of claim. Theaffidavit confirms the plaintiff's entitlement to the sum sought. Counsel for theplaintiff provided statements and correspondence with ASB confirming the quantumof the sum.Order[8] I am satisfied that the plaintiff is entitled to a default judgment. Because thedefendant has not filed a statement of defence on the Court, judgment is given that theplaintiff recover under s 185(1)(f) of the Property Law Act 2007 the sum of$752,758.01 and all or any accrued interest on it from the mortgagee of the propertyof 130 Coronation Road, Hillcrest, Auckland, or any other person that currently holdsthe surplus sale proceeds from the mortgagee sale of the property that occurred on30 August 2018.[9] The plaintiff does not seek an order for costs and disbursements against thedefendant.________________________________Woolford J