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Baycorp PDL New Zealand Ltd v Bates [2020] NZDC 7211

Published 21 April 2021

Reserved judgment — judgment by default entered incorrectly — discontinuance — service effected out of time — District Court Rules 2014, rr 1.8, 5.68(2), 15.7, 15.8, 15.10, 15.20-15.21 & 19.37 — O’Shannessy v Dasun Hair Designers Ltd [1980] 2 NZLR 652 (HC) — Russell v Cox [1983] NZLR 654 (CA). This was an application to set aside a judgment by default entered incorrectly. The plaintiff in the original proceedings had filed proceedings to claim a sum of money owed to it by the defendant. An order for substituted service of proceedings was granted to allow the service of proceedings to be made by serving to the defendant or attaching the document to the door of the defendant's property. This was done one year and two days after the initial filing; however, the plaintiffs had not applied for an extension of time within which to have the service of proceedings effected. On inquiry by the defendant to the District Court, he was incorrectly informed that the proceedings had been discontinued. Several months later judgment by default was entered by the Deputy Registrar of the District Court, and a charging order was made over the defendant's land in favour of the plaintiff. Pursuant to r 5.68(2), service must be effected within 12 months of filing the statement of claim or notice of proceedings, and as this had not been done the Judge deemed it to be a breach of the Rule. Where a judgment has been granted by default, a Court can vary this or set it aside where there has been a miscarriage of justice. The Judge considered the reasons for the delay, whether a ground of defence had been disclosed, and whether the plaintiffs would suffer irreparable injury if the judgment was set aside. The reason for the delay in the application was due to the Registry staff informing the defendant that the proceedings had been discontinued, and the defendant had outlined a defence in his correspondence. The Judge considered it just in all the circumstances to set aside the judgment. The Judge also discharged the charging order over the defendant's land under r 19.37, and made an order that should the plaintiff recommence the proceedings it must pay any costs incurred. Judgment Date: 30 April 2020.

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