Waller v The Ship "Aqua Vitae" (No 2)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
CIV 2003-404-5025

BETWEEN JOHN ANTHONY WALLER AND RICHARD DALE AGNEW
Plaintiffs

AND THE SHIP "AQUA VITAE"
Defendant

Hearing: 6 October 2003

Appearances: M J Tingey and J Caird for Plaintiffs
No appearance for Respondent

Judgment: 6 October 2003

(ORAL) JUDGMENT (NO. 2) OF HEATH J

Solicitors: Bell Gully, PO Box 4199, Auckland

[1] On 5 September 2003, after hearing from counsel for the plaintiffs and hearing evidence from Mrs Fatupiato in support, I made an order that a warrant of arrest issue in respect of the vessel Aqua Vitae. All questions of costs were reserved.

[2] Mr Tingey now seeks a default judgment. The vessel has been arrested. Mr Glover, the person named as the owner of the vessel has been served with relevant papers and an affidavit of service is on the Court file in respect of that.

[3] Further, an application has been made for default judgment which has also been served on Mr Glover. Mr Tingey undertakes to the Court to file an affidavit of service by Mr Tubbs of 3 October 2003 deposing as to service of the application for default judgment, statement of claim and affidavit of Mrs Fatupiato on Mr Glover.

[4] Mr Glover has not taken any steps in the proceeding: see r 773(1)(a) of the High Court Rules 1985. Judgment by default is sought under r 790(3) of the Rules. That rule provides:

790 Judgment by default in actions in rem

(3) A plaintiff to an action in rem may apply to the Court for judgment by default if -

(a) The defendant to the action fails to enter an appearance within the time fixed for appearing; and

(b) Not less than 14 days has passed since the notice of proceeding was served; and

(c) The plaintiff has filed an affidavit proving due service of the notice of proceeding, a statement of claim (where one has not already been filed), and an affidavit verifying the facts on which the action is based.

[5] I am satisfied that the requirements of r 790(3) have been met. I am also satisfied that Mr Waller and Mr Agnew in their capacity as statutory managers of the International Investment Unit Trust have established a right of ownership in the vessel. Accordingly, I make a declaration that ownership of the vessel, Aqua Vitae, resides in Mr Waller and Mr Agnew in their capacity as statutory managers of the International Investment Unit Trust. Further I order that Mr Ian William Glover, forthwith deliver up possession of the vessel Aqua Vitae to the statutory managers. The statutory managers are entitled to costs in relation to the proceeding. I award costs on a 2C basis to be fixed by the Registrar. Reasonable disbursements are also to be fixed by the Registrar.