TAKANINI FEEDS LTD V J F GRUNBAUM AND ORS HC AK CIV-2009-404-001307

TAKANINI FEEDS LTD V J F GRUNBAUM AND ORS HC AK CIV-2009-404-001307

Default judgment was set aside because the fourth defendant's failure to file a defence was excusable given remoteness and reasonable steps to obtain legal aid, and because he demonstrated arguable defences to the plaintiff's conversion and money had and received claims (including that funds were mixed in Rock on...

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Citation
openlaw-679521ef_eeb1_49d8_aa74_9895881011fd.pdf
Parties
Plaintiff: Takanini Feeds Ltd; First Defendant: J F Grunbaum; Second Defendant: A M Grunbaum; Third Defendant: Rock on Fishing Ltd; Fourth Defendant: P J Husband; Fifth Defendant: S Dandy
Court
High Court
Jurisdiction
New Zealand
Judgment Date
1 March 2010
Procedural Posture
Civil Recovery (conversion, Money Had and Received, Unjust Enrichment, Deceit) / Application to Set Aside Default Judgment Under High Court Rules R 15.13; Case Management
Outcome
Default judgment of 24 June 2009 against the fourth defendant set aside; charging order preserved; costs awarded to plaintiff; directions given for pleading and case management.
Legal Topics
Setting Aside Default Judgment, Conversion, Money Had and Received, Unjust Enrichment, Knowing Receipt, Accessory Liability, Tracing and Mixing of Funds, Legal Aid and Costs, Charging Order and Caveat
Civil Procedure Tort (conversion) Restitution/unjust Enrichment Equity (accessory Liability/knowing Receipt) Company Law Setting Aside Default Judgment Conversion Money Had and Received +6 more

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Parties

Takanini Feeds Ltd

Plaintiff

J F Grunbaum

First Defendant

A M Grunbaum

Second Defendant

Rock on Fishing Ltd

Third Defendant

P J Husband

Fourth Defendant

S Dandy

Fifth Defendant

Procedural Posture

Civil Recovery (conversion, Money Had and Received, Unjust Enrichment, Deceit) / Application to Set Aside Default Judgment Under High Court Rules R 15.13; Case Management

Legal Issues

  1. 1 Whether the default judgment against the fourth defendant should be set aside under r 15.13 as amounting to or risking a miscarriage of justice
  2. 2 Whether the fourth defendant's delay in filing a statement of defence was excusable
  3. 3 Whether the fourth defendant has arguable defences to claims of conversion and money had and received in respect of 15 cheques

Ratio Decidendi

Default judgment was set aside because the fourth defendant's failure to file a defence was excusable given remoteness and reasonable steps to obtain legal aid, and because he demonstrated arguable defences to the plaintiff's conversion and money had and received claims (including that funds were mixed in Rock on Fishing Ltd and no evidence he drew or received proceeds); leaving the judgment would risk a miscarriage of justice. The charging order was retained as protective relief and costs of $3,000 were awarded against the fourth defendant.

Court Disposition

Default judgment of 24 June 2009 against the fourth defendant set aside; charging order preserved; costs awarded to plaintiff; directions given for pleading and case management.

Orders

  • Default judgment of 24 June 2009 against the fourth defendant is set aside.
  • Charging order 8233826.1 registered against land identifiers NA183A/84 and 184354 shall remain registered against the titles pending further order of the Court; liberty to apply reserved.