WONG & Anor v SELFE & Anor [2017] NZHC 610

WONG & Anor v SELFE & Anor [2017] NZHC 610

The application to set aside the summary judgment was dismissed because the summary judgment was not irregularly obtained (service was valid and the plaintiffs' affidavit need not have disclosed matters of which the plaintiffs had no evidence), the defendants failed to demonstrate a substantial defence (they produced no invoices or documentary evidence to support the asserted $90,000 set-off and their illegal re-entry claim produced no quantifiable loss), and the delay in bringing the application was not sufficiently explained; accordingly the original summary judgment and associated orders remain in force.

Citation
[2017] NZHC 610
Parties
First Plaintiff: Shun Lee Ronnie Wong; Second Plaintiff: Suet Lin Shirley Tang; First Defendant: David Leeroy Selfe; Second Defendant: Kirsten Leonie Selfe
Court
High Court
Jurisdiction
New Zealand
Judgment Date
30 March 2017
Procedural Posture
Civil Claim for Unpaid Rent and Outgoings; Guarantor Liability; Summary Judgment and Set Aside Application / Application to Set Aside Summary Judgment (interlocutory)
Outcome
Application to set aside summary judgment dismissed; summary judgment and orders entered 17 May 2016 remain enforced
Legal Topics
Summary Judgment, Setting Aside Judgment, Service of Proceedings, High Court Rules R12.4 and R12.14, Guarantee of Lease Obligations, Set Off/counterclaim for Repairs, Illegal Re Entry, Property Law Act S245, Liquidation, Costs
Contract Property Law Insolvency Civil Procedure Landlord and Tenant Bankruptcy Summary Judgment Setting Aside Judgment +8 more

Case Brief

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Parties

Shun Lee Ronnie Wong

First Plaintiff

Suet Lin Shirley Tang

Second Plaintiff

David Leeroy Selfe

First Defendant

Kirsten Leonie Selfe

Second Defendant

Procedural Posture

Civil Claim for Unpaid Rent and Outgoings; Guarantor Liability; Summary Judgment and Set Aside Application / Application to Set Aside Summary Judgment (interlocutory)

Legal Issues

  1. 1 Whether the summary judgment was irregularly obtained (defective service or inadequate affidavit under r12.4(5)(b))
  2. 2 Whether the defendants have a substantial ground of defence (set-off/counterclaim for repairs and damages for alleged illegal re-entry)
  3. 3 Whether the defendants' delay in applying to set aside is reasonably explained

Ratio Decidendi

The application to set aside the summary judgment was dismissed because the summary judgment was not irregularly obtained (service was valid and the plaintiffs' affidavit need not have disclosed matters of which the plaintiffs had no evidence), the defendants failed to demonstrate a substantial defence (they produced no invoices or documentary evidence to support the asserted $90,000 set-off and their illegal re-entry claim produced no quantifiable loss), and the delay in bringing the application was not sufficiently explained; accordingly the original summary judgment and associated orders remain in force.

Court Disposition

Application to set aside summary judgment dismissed; summary judgment and orders entered 17 May 2016 remain enforced

Orders

  • Summary judgment in favour of plaintiffs for $213,575 (entered 17 May 2016) is affirmed and remains in force
  • Application dismissed