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Kirkpatrick v Gobind [2021] NZDC 9436

Published 19 October 2022

Application to set aside judgment by default — irregularly obtained judgment — proper service — personal service — District Court Rules 2014, rr 5.67, 6.4, 6.7, 6.20 & 15.10. The second defendant applied to have a default judgment entered against her set aside. The basis of her application was that she had not been properly served. The default judgment related to rent arrears on a premises leased by the second defendant and her husband, as guarantors of a lease assignment. Attempts were made to serve the second defendant, and ultimately the documents were received by a person claiming to have authority to accept service on behalf of the second and third defendants. The person accepting the documents was not a solicitor authorised to accept service. On that basis the Court concluded that valid personal service had not been proved. Where a judgment has been obtained irregularly the judgment must be set aside and there is no discretion of the Court to determine otherwise. As such, the judgment by default entered against the second defendant was set aside. The second defendant was entitled to costs which the Court awarded on a category 2B basis. Judgment Date: 18 May 2021.

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