ZHANG v GUAN [2018] NZHC 841

ZHANG v GUAN [2018] NZHC 841 [27 April 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2016-404-2217[2018] NZHC 841UNDER the Declaratory Judgments Act 1908 and theProperty Law Act 2007BETWEEN QUANGLI ZHANGPlaintiffAND ZUNLONG GUANFirst DefendantHUANRUI LIUSecond DefendantJING JIANGThird DefendantZENGMIN HOUFourth DefendantHearing: On the papersAppearances: E J Werry for the PlaintiffC Jiang for the Second and Fourth DefendantsM Lenihan for the Third DefendantJudgment: 27 April 2018JUDGMENT OF WOODHOUSE JThis judgment was delivered by me on 27 April 2018 at 5:00 p.m.pursuant to r 11.5 of the High Court Rules 1985.Registrar/Deputy RegistrarApplication for judgment by default[1] On 17 July 2017 the plaintiff filed an application, by memorandum, forjudgment by default against the first defendant. The application is in the memorandumdated 11 July 2017. This application was accompanied by a draft of the judgmentsought.[2] Judgment was sought by default for reasons set out in adequate detail in afurther memorandum for the plaintiff dated 4 April 2018. The most relevant courtorders, relating to the first defendant, are the following:(a) On 19 May 2017 Duffy J made various orders, one of which was thatthe first defendant file and serve a statement of defence by 26 May2017. This order is recorded in the Judge's minute of 19 May 2017 at[4](c).(b) The defendant did not file a statement of defence at any time up to 14June 2017. On 14 June 2017 there was a further order that the firstdefendant file and serve a statement of defence by 5 July 2017,otherwise he would automatically be debarred from defending theclaim. This is recorded in a minute of Duffy J dated 14 June 2017 at[3].(c) There has been no compliance down to the present time with the orderto file the defence, and no other steps have been taken by the defendantin this proceeding since the cut-off date of 5 July 2017.[3] I note, for completeness, that there is an affidavit of service of the proceedingand related documents on the first defendant on 13 September 2016. There is no doubtthat the defendant had full notice of the proceeding because on 14 October 2016 thefirst defendant filed an application to stay or dismiss the proceeding. The firstdefendant failed to advance that application and that is what led to the orders made bythis Court on 19 May and 14 June 2017.[4] The plaintiff's application was put before me, as Duty Judge, on 24 April 2018.I do not know why the application for judgment by default was not dealt withreasonably soon after the application was filed.[5] The plaintiff's memorandum of 4 April 2018 (noted above at [4] and alsoreferred to me on 24 April 2018), was filed in support of a without notice applicationby the plaintiff for leave to discontinue the proceedings against all defendants exceptthe first defendant. This prompted a restrained request for action on the applicationfor entry of the default judgment.Decision on the application for judgment by default[6] The plaintiff is entitled to judgment by default against the first defendant.Judgment by default may be entered against the first defendant on the terms containedin the draft judgment filed on 17 July 2017.[7] The draft judgment includes an order for the first defendant to pay interest to10 July 2017. The plaintiff has leave to apply for a supplementary judgment forinterest from 10 July 2017 down to the date of entry of the primary default judgment.If the plaintiff seeks further interest up to the date of entry of the primary judgment,the application should be accompanied by a short memorandum recording the basisfor the claim.Application without notice for leave to discontinue against the other defendants[8] The proceeding continued against the second, third and fourth defendants andhas been set down for hearing commencing on 5 June 2018. The plaintiff has nowsettled with the second, third and fourth defendants. There are consents from thesecond, third and fourth defendants to discontinuance by the plaintiff.[9] The plaintiff has sought leave because of r 15.20(4) of the High Court Rules.This is directed to discontinuance where there is more than one defendant. Unless theplaintiff has the consent of all defendants, discontinuance may not occur without theleave of the Court. The plaintiff does not have the consent of the first defendant.[10] I am satisfied leave should be granted. This is for the reasons recorded abovein relation to the defaults by the first defendant and the final order debarring him fromdefending, and given the fact that there are no claims by the first defendant against theother defendants.[11] I am also satisfied that this application is properly made without notice to anyof the defendants.[12] Consequently, there is an order granting leave to the plaintiff to discontinueagainst the second, third and fourth defendants.[13] Presumably the fixture commencing on 5 June 2018 should be vacated, butthere does not appear to be a formal request for that to occur. Out of an abundance ofcaution a scheduling officer should check the position with Mr Werry._________________________________Woodhouse JSolicitors / Counsel:Mr E J Werry, Barrister, AucklandMr E Chen (plaintiff's instructing solicitor), Yu Lawyers, AucklandMr C Jiang, Glaister Ennor, AucklandMr M Lenihan, Barrister, AucklandMr P Zheng (third defendant's instructing solicitor), Northern Legal, Auckland