KIVITS AND KIVITS v DRAPER AND DRAPER [2016] NZHC 1961

KIVITS AND KIVITS v DRAPER AND DRAPER [2016] NZHC 1961

The court concluded the Drapers had arguable defences sufficient to justify setting aside the regularly obtained default judgment in whole or in part: the 7 September 2010 agreement constituted an acknowledgment and there was a part payment of $150,000 which restarted limitation for the principal under s25(4) of the Limitation Act 1950, reducing the recoverable principal to $300,000; however, limitation still bars interest that fell due more than six years before proceedings commenced so recoverable interest is limited to interest accruing in the six years before the start of the proceeding. Relief was granted conditionally on compliance with discovery and other directions to prevent...

Citation
[2016] NZHC 1961
Parties
Plaintiffs: Cornelius Kivits and Hubertine Kivits; First Defendants: Robert Edward Draper and Cynthia Gladys Draper; Second Defendant: Burton & Co
Court
High Court
Jurisdiction
New Zealand
Judgment Date
23 August 2016
Procedural Posture
Mortgage Debt Enforcement; Application to Set Aside Default Judgment / Application Under High Court Rules R 15.10 to Set Aside a Regularly Obtained Default Judgment
Outcome
Default judgment conditionally set aside and to be amended subject to compliance with discovery and directions; conditional amendment to principal $300,000 and limited interest if defendants comply with orders
Legal Topics
Setting Aside Default Judgment, Mortgage Enforcement, Limitation Defence, Acknowledgement and Part Payment (s25), Appropriation of Payments
Civil Procedure Property Law Contract Limitation Law Setting Aside Default Judgment Mortgage Enforcement Limitation Defence Acknowledgement and Part Payment (s25) +1 more

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Parties

Cornelius Kivits and Hubertine Kivits

Plaintiffs

Robert Edward Draper and Cynthia Gladys Draper

First Defendants

Burton & Co

Second Defendant

Procedural Posture

Mortgage Debt Enforcement; Application to Set Aside Default Judgment / Application Under High Court Rules R 15.10 to Set Aside a Regularly Obtained Default Judgment

Legal Issues

  1. 1 Whether the default judgment should be set aside under r 15.10
  2. 2 Whether the defendants have a substantial ground of defence (part payment / acknowledgment)
  3. 3 Whether limitation bars the claim for principal and interest under the Limitation Act 1950

Ratio Decidendi

The court concluded the Drapers had arguable defences sufficient to justify setting aside the regularly obtained default judgment in whole or in part: the 7 September 2010 agreement constituted an acknowledgment and there was a part payment of $150,000 which restarted limitation for the principal under s25(4) of the Limitation Act 1950, reducing the recoverable principal to $300,000; however, limitation still bars interest that fell due more than six years before proceedings commenced so recoverable interest is limited to interest accruing in the six years before the start of the proceeding. Relief was granted conditionally on compliance with discovery and other directions to prevent...

Court Disposition

Default judgment conditionally set aside and to be amended subject to compliance with discovery and directions; conditional amendment to principal $300,000 and limited interest if defendants comply with orders

Orders

  • Telephone conference at 12:30pm on 12 September 2016
  • Defendants to file and serve an affidavit of documents required under order of 24 April 2016 by 5 September 2016 and make privileged documents available for inspection