WILLIAMS AND WILLIAMS V VAN LOGHEM INVESTMENTS LTD HC AK CIV-2008-404-5241

WILLIAMS AND WILLIAMS V VAN LOGHEM INVESTMENTS LTD HC AK CIV-2008-404-5241

Judgment was regularly obtained and applicant had clear repeated notice and opportunities to participate; his delay was unexplained and he elected a deliberate course not to defend (courting risk); although he had arguable grounds that apportionment would differ, those grounds did not outweigh the substantial prejudice to respondent and others arising from finality of the settlement; therefore no miscarriage of justice and the application to set aside is dismissed, but the court varied the interest component reducing the judgment total.

Citation
openlaw-807ba59f_60d5_4466_b733_1abae5cf9a0f.pdf
Parties
Plaintiff: Paul Kevin Williams; Plaintiff: Victoria Catherine Williams; First Defendant: Van Loghem Investments Ltd; Second Defendant: Philip Noel Van Loghem; Third Defendant: North Shore City Council; Fourth Defendant: Donald Stewart trading as Don Construction; Fifth Defendant: Brendon Gordon Architecture Limited; Sixth Defendant / Applicant: Derek Clifton Saltmarsh trading as Clifton Plastering
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 March 2012
Procedural Posture
Application to Set Aside Default Judgment (r 15.13) in Leaky Building/contribution Litigation / Oral Judgment on Application to Set Aside Default Judgment (high Court)
Outcome
Application dismissed except that the default judgment was varied to reduce the interest component
Legal Topics
Set Aside Default Judgment, Contribution Under S 17 Law Reform Act 1936, Duty of Care of Subcontractor/director, Interest and Costs, Finality of Settlement
Civil Procedure Tort (negligence) Construction Law Bankruptcy Set Aside Default Judgment Contribution Under S 17 Law Reform Act 1936 Duty of Care of Subcontractor/director Interest and Costs +1 more

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Parties

Paul Kevin Williams

Plaintiff

Victoria Catherine Williams

Plaintiff

Van Loghem Investments Ltd

First Defendant

Philip Noel Van Loghem

Second Defendant

North Shore City Council

Third Defendant

Donald Stewart trading as Don Construction

Fourth Defendant

Brendon Gordon Architecture Limited

Fifth Defendant

Derek Clifton Saltmarsh trading as Clifton Plastering

Sixth Defendant / Applicant

Procedural Posture

Application to Set Aside Default Judgment (r 15.13) in Leaky Building/contribution Litigation / Oral Judgment on Application to Set Aside Default Judgment (high Court)

Legal Issues

  1. 1 Whether the default judgment was regularly obtained
  2. 2 Whether there has been a miscarriage of justice under r 15.13
  3. 3 Whether applicant has a substantial ground of defence (personal liability and apportionment under s17)

Ratio Decidendi

Judgment was regularly obtained and applicant had clear repeated notice and opportunities to participate; his delay was unexplained and he elected a deliberate course not to defend (courting risk); although he had arguable grounds that apportionment would differ, those grounds did not outweigh the substantial prejudice to respondent and others arising from finality of the settlement; therefore no miscarriage of justice and the application to set aside is dismissed, but the court varied the interest component reducing the judgment total.

Court Disposition

Application dismissed except that the default judgment was varied to reduce the interest component

Orders

  • Application to set aside dismissed
  • Judgment varied to a total of NZD 405354.30