About Image Limited v Advaro Limited - [2018] NZHC 2749

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2016-404-2183 [2018] NZHC 2749

BETWEEN
ABOUT IMAGE LIMITED AND OTHERS

First to Sixty-Fourth Plaintiffs

AND AND

AND

ADVARO LIMITED Defendant

ADVARO FUNDING LIMITED Counterclaim Plaintiff

JENNIFER DOHERTY AND OTHERS

First to Fifty-Third Counterclaim Defendants

Hearing: 23 October 2018

Appearances:

D M Fraundorfer and T Conder for the Plaintiffs
D McLellan QC and J Adams for the Defendant

Judgment:

24 October 2018

JUDGMENT OF JAGOSE J

(Reasons for dismissal of plaintiffs’ informal applications)

This judgment was delivered by me on 24 October 2018 at 1:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors:
D Fraundorfer and T Conder, Holland Beckett, Tauranga
D McLellan QC, Barrister, Auckland
J Adams, Barrister, Auckland
P M Hunter, Simpson Western, Auckland

ABOUT IMAGE LIMITED v ADVARO LIMITED [2018] NZHC 2749 [24 October 2018]

[1] The plaintiffs’ evidence has been given at intervals over the past week. More efficiently to use hearing time, expressly with reservations about doing so before the plaintiffs’ case had closed, the defendant stated its case last week. At the close of the plaintiffs’ case yesterday morning, Mr McLellan advised no evidence would be offered by the defendant.

[2] Mr Fraundorfer responded the defendant was bound to call Kerry John McNae, for whom a brief of evidence had been served by the defendant, and to which evidence Mr McLellan had referred in his ‘mini’ opening. That reference was in support of the proposition the defendant was “a finance company that specialised in renting equipment to businesses”. Mr Fraundorfer wished to cross-examine Mr McNae.

[3] Mr Fraundorfer relied on HCR 9.13(2), in respect of which Mr Conder made submissions. The whole of HCR 9.13 provides:

9.13 Briefs not given in evidence

(1) If, by the time that a party opens the party’s case, the brief of another party’s witness has not been given in evidence, the party may, in opening, refer to that brief only with the leave of the trial Judge.

(2)When any part of the evidence contained in a brief is not given in evidence at the trial by the person who signed the brief, any other party to the proceeding may, unless the trial Judge otherwise directs, put that part of the evidence to that person in cross-examination.

[4] Mr Conder argued HCR 9.13(2) commits a party to call any person who served a signed brief to give evidence, if that party referred to the brief in opening or stating its case. This argument proceeded by analogy to HCR 9.5(4), which provides:

A document in the common bundle is automatically received into evidence (subject to the resolution of any objection to admissibility) when a witness refers to it in evidence or when counsel refers to it in submissions (made otherwise than in a closing address).

In other words, the argument (as I understood it) was that Mr McLellan’s reference to a brief caused it to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2749
Decision Date: 24 October 2018

CaseChat Overview and Summary

The plaintiffs, About Image Limited and others, commenced proceedings against the defendant, Advaro Limited, along with Advaro Funding Limited and Jennifer Doherty, among others, in the High Court of New Zealand at Auckland. The dispute centred around allegations related to financial transactions and agreements involving equipment leasing and financing. The court was tasked with determining whether the plaintiffs could compel the defendant to call a specific witness, Kerry John McNae, for cross-examination and if they could reopen their case to present additional evidence.

The central legal issue before the court was whether the plaintiffs could compel the defendant to call Mr McNae for cross-examination and whether they could reopen their case to present his evidence. The plaintiffs argued that the defendant was required to call Mr McNae for cross-examination under High Court Rules (HCR) 9.13(2). The court needed to decide if the defendant's reference to Mr McNae's brief in their opening statement obligated them to call him as a witness.

The court held that Mr McLellan's reference to Mr McNae's brief did not convert that brief into evidence or make Mr McNae a witness. The court relied on the principle that a witness's brief is not evidence until it is read by the witness at the trial. Therefore, the reference to the brief did not entitle the plaintiffs to cross-examine Mr McNae. Furthermore, the court noted that HCR 9.13(2) allows cross-examination on omissions from the proposed evidence but does not require a prospective witness to be called. The court also declined to allow the plaintiffs to reopen their case to call Mr McNae, finding that the plaintiffs' failure to call him earlier was not adequately explained and that his evidence would not significantly advance the justice of the case.

In conclusion, the court dismissed the plaintiffs' applications to require Mr McNae for cross-examination and to reopen their case to present his evidence. The judgment underscored the importance of adhering to case management responsibilities and the need for parties to identify all evidence in advance. The court emphasised that the discretion to allow additional evidence should be exercised sparingly and only in exceptional circumstances.

Orders