PENNEY v WYLIE PROPERTIES LTD [2023] NZHC 1171

PENNEY v WYLIE PROPERTIES LTD [2023] NZHC 1171

The Court held Wylie Properties did not establish that its claim was a liquidated demand under r15.7 because there was no clear contractual assignment or basis to fix a precise reasonable price for post-March 2015 storage; the bailment claim lacked sufficient evidence of a contractual bailment for reward or of...

Source-derived case information.

Citation
[2023] NZHC 1171
Parties
Plaintiff: Stephen Charles Penney; First Defendant: Wylie Properties Limited; Second Defendant: David Keith Wylie; Third Defendant: Ms Simunovich
Court
High Court
Jurisdiction
New Zealand
Judgment Date
16 May 2023
Procedural Posture
Civil: Conversion, Trespass to Goods, Defamation; Counterclaim for Unpaid Storage (breach of Contract/bailment) / Interlocutory: Application for Default Judgment on Counterclaim and Application for Security for Costs; Summary Judgment Application Discontinued Against Third Defendant
Outcome
Wylie Properties' default judgment application dismissed; security for costs ordered against plaintiff and plaintiff's claims stayed until security provided; plaintiff directed to file defence to counterclaim and case management directions given; discontinuance against third defendant noted with costs memoranda...
Legal Topics
Default Judgment, Security for Costs, Bailment, Storage Charges, Summary Judgment, Conversion, Trespass to Goods, Defamation
Civil Procedure Contract Property Tort Default Judgment Security for Costs Bailment Storage Charges +4 more

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Parties

Stephen Charles Penney

Plaintiff

Wylie Properties Limited

First Defendant

David Keith Wylie

Second Defendant

Ms Simunovich

Third Defendant

Procedural Posture

Civil: Conversion, Trespass to Goods, Defamation; Counterclaim for Unpaid Storage (breach of Contract/bailment) / Interlocutory: Application for Default Judgment on Counterclaim and Application for Security for Costs; Summary Judgment Application Discontinued Against Third Defendant

Legal Issues

  1. 1 Whether the counterclaim for unpaid storage fees constituted a liquidated demand enabling sealing of judgment under r15.7 of the High Court Rules
  2. 2 Whether evidence established assignment or contractual obligation or a bailment for reward sufficient to support default judgment under r15.9
  3. 3 Whether security for costs should be ordered against the plaintiff and in what amount and form

Ratio Decidendi

The Court held Wylie Properties did not establish that its claim was a liquidated demand under r15.7 because there was no clear contractual assignment or basis to fix a precise reasonable price for post-March 2015 storage; the bailment claim lacked sufficient evidence of a contractual bailment for reward or of circumstances invoking indemnity for a gratuitous bailment. Accordingly default judgment was inappropriate under r15.9. Separate discretion under r5.45 was exercised to order security for costs because credible evidence (voluntary bankruptcy, refusal to disclose finances, prior procedural misconduct and unpaid wasted costs) indicated likely inability to pay; security of $35,000 was...

Court Disposition

Wylie Properties' default judgment application dismissed; security for costs ordered against plaintiff and plaintiff's claims stayed until security provided; plaintiff directed to file defence to counterclaim and case management directions given; discontinuance against third defendant noted with costs memoranda...

Orders

  • Default judgment application by Wylie Properties dismissed
  • Proceedings by Penney against Wylie Properties stayed until security for costs of NZD 35,000 is provided by payment into court or other security to Registrar's satisfaction (security must not be over the Boat)