JUDGMENT
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This was an application by summons, for summary judgment,
dated 24thl 2001 by the plaintiff’s cf’s counsel. Generally the
defendant did not dispute debt but has a cross-claim that the amount will
far exceed the debt if judgment is granted. By Jeffrey Philip Meltzer
affidavit of Auckland, being the liquidator of
the plaintiff did not deny
the defendant owing NZ$228,257 as at 31st December 1998, however,
the cross-claim by the defendant will be the real issue between the parties.
The submission by
counsel, support the fact that the defendant owes the
money to the plaintiff. What the counsel for the defendant advance that
they
have requested from the plaintiff’s counsel to set out exactly the
particulars of loss and therefore, the Court
cannot enter judgment.
The Wf Summons states out the claim and debt owing
without particularizing the various debs debts owing. However, by Jeffrey’s
affidavit, before filing of Writ of Summons, David Brown as Director of the
defendant admitted liability of NZ$228,257
on 20th February 1998.
The admission remains unchanged until today. I therefore ask myself, what
good then for particulars to
be submitted? For guidance purposes, I refer to
R. –v- Associated Northern Collieries (1910) 11 CLR 738, even though
not submitted, lays down what I think relevant to this case and quote: -
“Tndamental principle to be that the opposite
party shall always be fairly apprised of d of the nature of the case he is called
upon to meet, shall be placed in possession of it broad outlines and the
constitutive facts which are said to raise his
legal liability. He is to
receive sufficient information to ensure a fair trial and to guard against
what the law terms
“surprise”, but he is not entitled to be told the mode by
which the case is to be proved against him.”
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The concept of particular was applied in Trade
Practices Commission –v- Total Australia Ltd. (1957) 24 FLR 413 and in
Guollo and Company Pty. Ltd. –v- Hammond (1977) 16 ALR 123 – where a
party is entitled to know every material fact on which the opponent relies
so that the other party can prepare
a brief and not to be taken by surprise.
There are two aspects to achieve the purpose of particulars:
1. & p;   &nbp; To infoe other party of thof the case to be meet at the hearing;
and
2sp; nbsp; Totlimi gtherality of the the pleadings in determining the real
issue between the parties for the Court
to decide.
There are two versions as to the action of the defendant:
-
1) ;&nbssp;&nbs;&nbs; &nbp; & &nbssp; &nbp; &nbs;
Hitadm liabiliability on the 20th February 1998, prior to
issue of Writ of Summons; and
&GB">
2) ;&nbssp;&nbs;&nbs; &nbp; & &nbssp; &nbp; &nbs;
D liedility byty by defence.
Guided by the aboinciple, the plaintiff did not
particularize his claim in the Writ of Summons and thed the defendant tend to
deny liability by ways of defence, and seeking separate particulars as to
the statement of claim. However, in addition
to the admission in the
affidavit and denial in his defence, the counsel advances that the defendant
did not deny liability,
but the allegation must be particularized.
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I find that the document “Director Certification and
Confirmation of Company bt ness to David Brown Cons Construction” is
evidence of proof of admission of debt and required no other particulars.
In this case there were no real issues between the
parties for the Court to decide, and the sensible approach for this Court
to
do justice in this case for the parties is to grant the summary judgment
applied for. In taking this approach, the
Court is mindful of the fact that
the counterclaim brought by the defendant is a separate claim, and if the
Court find
for the defendant in his counterclaim then a separate order or
judgment can be made. It will make no difference to the parties’
rights if
the amount ordered far exceed the amount in this summary judgment, as the
two cases are separate. And the counterclaim
cannot be used as a set off.
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I therefore grant the applicant/plaintiff that: -
1. &nnbsp; nbsp;&nbp; &nbss;&nbbs;&nnbsp; &nsp; &nbbp;&nnbsp;
Tpan>That there be judgment to the plaintiff against the defendant in the
sum o228,2;
: 1">
2.   &nbbp;&nnbp;& &nbbsp; &nbp; &nbp; &nbs that the defe defendant is ordered to pay interest at 12% per annum back
d to ate oplainsup>tp> Ap000;
3. &nnsp;&&nsp;;&nspp;&nssp;&nsp; p;&nssp;
Tpan>The defendant pay the costs to the plaintiff taxenot
agreespan>
4. nbsp; p;&nbbp; &nbp; &nbssp; &nbssp;
Than>These orders are stayed execution pending hearing of the crossm
t offpan><: 1">
Dated at Port, this 8th day of March
2002.
R. MARUM MBE
Judge
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