Anyone here done a Defence and Counterclaim?

[morag-janet-of-the-hill-family]

Here’s some interesting information. Also you can usually get free legal advice in most towns. If you ring Citizens Advice Bureau they can point you in the right direction. A lawyer can answer these basic questions, you don’t have to give him any details you don’t want to (such as the fact you are doing it yourself) and less is probably better. https://legalvision.co.nz/disputes-and-litigation/when-can-i-make-counterclaim-nz/

[sseeto]

If filing a Affidavit with our Defence to a claim made by Council through the courts, do we only file one copy with the courts and one copy for ourselves, or does a copy also have to be sent to the Plaintiff(Council’s solicitor) as well?

[morag-janet-of-the-hill-family]

You need to send the affidavit to all parties, judge and the prosecutor/defendant (councils solicitor) and keep a copy for yourself. Make sure you do it at least a week before court if possible so they can’t refuse to accept it. If they try to hand you any paperwork as you enter court then let the judge know you only just received it and you need time to go through it so you need an adjournment. You could also ask “if it wasn’t properly filed (you didn’t receive a copy at the time of filing) isn’t it inadmissable?” If they try to proceed with it then maybe have something up your sleeve you can hand to them saying “Thank you for letting me know each side can be served at the last minute, I also have something for them.” Just suggestions for come backs.

[sseeto]

Thanks for letting me know.

[sseeto]

Do I have to also give a copy of Notice of Appearance, and the Application for Summary Judgement to the plaintiff(council’s solicitor) after filing it with the court?

[morag-janet-of-the-hill-family]

I don’t think so, here’s an excerpt from a webinar ‘how properly to use affidavits effectively’ ….

In another case just recently to do with a mortgage where a promissory note was

delivered as payment. About a year and a half after payment it went to court and

then 6 or 8 months after several hearings the judge attempted to make a judgement,

but the counsel for the Defendant said to the Judge “before you go there making the

judgement, the Plaintiff’s 6 affidavits have been replied to and answered and the key

facts alleged have been denied and where relevant supporting evidence was put into

position and yet the Defendant’s three affidavits have not been answered and the

facts have not been denied and for some reason the court has chosen to ignore the

Defendant’s Affidavits, does an unrebutted affidavit not stand as truth in commerce,

therefore isn’t the Defendant entitled to a Summary Judgement?” There was silence

for about 5 minutes and then he came back and he started to talk to the lawyers for

the Plaintiff, the bank and so the counsel interjected and said “Again this is the

second time, the defendant now seeks orders for Summary Judgement based on the

unrebutted facts in the three affidavits” Again the Judge was silent, the whole room

was silent for about 5 minutes. Then he started to read out that he was going to

adjourn and I was cut off. It was a Zoom conference and I was denied a third

opportunity. Had I had the opportunity a third time to move the Judge for a Summary

Judgement based on the facts on the defendants Affidavits he would have got a

favourable decision. It rattled them. So the affidavits are powerful if they are

competently drawn up with evidence.

[morag-janet-of-the-hill-family]

I can private message you and give you a transcript of the webinar if you would like.

[sseeto]

That’s okay. I remember Mark saying those words in the module.

There is one thing I still need to know though. On the form that I downloaded for Application for Summary Judgement, in the footnotes, it says:

[1] For proceedings commenced by Originating Application for “Plaintiff” substitute “Applicant”.

[2] For proceedings commenced by Originating Application for “Defendant” substitute “Respondent”.

It that saying for me to change the word plaintiff to Applicant because the filed the first originating claim? Or something else?

[morag-janet-of-the-hill-family]

It sounds like you substitute whatever position you are in in the original court case for the word he has. If you were originally the Defendant change to Respondent on the Application , if you were the Plaintiff change to to Applicant on the Application.

[morag-janet-of-the-hill-family]

Here’s another https://martindillon.nz/high-court-civil/high-court-defences-and-counterclaims/

martindillon.nz

High Court defences and counterclaims - Martin Dillon

This article deals with the situation where the defendant does defend a claim and maybe even goes so far as to file a counterclaim.