MEMELINK v GRINDLAY [2014] NZHC 2009

MEMELINK v GRINDLAY [2014] NZHC 2009

The default judgment was not entered strictly in accordance with the statement of claim because the plaintiff sought to enforce a contract term that did not make the full purchase price due at the judgment date; the defendants' letter amounted to repudiation but the plaintiff elected to enforce the contract and could not recover the unpaid nominal purchase price without inquiry; accordingly the irregular default judgment was set aside.

Citation
[2014] NZAR 1151
Parties
Plaintiff: Harry Memelink; First Defendant: Malcolm Grindlay; Second Defendant: Robyn Grindlay
Court
High Court
Jurisdiction
New Zealand
Judgment Date
22 August 2014
Procedural Posture
Breach of Contract (share Sale and Purchase) / Application to Set Aside Default Judgment
Outcome
Default judgment dated 19 February 2014 set aside.
Legal Topics
Default Judgment, Setting Aside Judgment, Repudiation, Cancellation of Contract, Damages, Specific Performance, Waiver
Contract Law Civil Procedure Remedies Commercial Law Default Judgment Setting Aside Judgment Repudiation Cancellation of Contract +3 more

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Parties

Harry Memelink

Plaintiff

Malcolm Grindlay

First Defendant

Robyn Grindlay

Second Defendant

Procedural Posture

Breach of Contract (share Sale and Purchase) / Application to Set Aside Default Judgment

Legal Issues

  1. 1 Whether the default judgment was entered strictly in terms of the statement of claim
  2. 2 Whether defendants' November 2013 letter constituted repudiation or waiver
  3. 3 Whether plaintiff was entitled to recover the full purchase price as a liquidated sum on cancellation

Ratio Decidendi

The default judgment was not entered strictly in accordance with the statement of claim because the plaintiff sought to enforce a contract term that did not make the full purchase price due at the judgment date; the defendants' letter amounted to repudiation but the plaintiff elected to enforce the contract and could not recover the unpaid nominal purchase price without inquiry; accordingly the irregular default judgment was set aside.

Court Disposition

Default judgment dated 19 February 2014 set aside.

Orders

  • Default judgment entered 19 February 2014 is set aside
  • Costs lie where they fall