ALAN JONES AND ASBESTOS SOLUTIONS LIMITED

[2024] NZHC 2908

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-22

[2024] NZHC 2908

BETWEEN

ALAN JONES

Appellant

AND

ASBESTOS SOLUTIONS LIMITED

Respondent

Hearing:	24 September 2024
Appearances:	P V Cornegé and MSC Rollason for the Appellant D Delic for the Respondent
Judgment:	7 October 2024
Reissued:	14 October 2024

JUDGMENT OF BLANCHARD J

This judgment was delivered by me on Monday, 7 October 2024 at 4.00 pm pursuant to r 11.5 of the High Court Rules 2016 and re-issued on 14 October 2024.

Registrar/Deputy Registrar

Solicitors:           S D Legal (D Delic), Hamilton

Counsel:            P Cornegé, Riverbank Chambers, Hamilton

JONES v ASBESTOS SOLUTIONS LIMITED [2024] NZHC 2908 [7 October 2024]

[1]    Mr Jones appeals against a decision of Judge S Clark granting Asbestos Solutions Ltd summary judgment in the sum of $33,353.50 plus interest and costs.1

[2]    The summary judgment related to a debt that Asbestos Solutions alleged was owed by Mr Jones for services that the company provided to him.

How the alleged debt arose

[3]    Mr Jones is a contractor who, at the relevant time, provided property renovation services.

[4]    In 2021, he was carrying out work for Pritika and Ganesh Harduar. Specifically, he was carrying out work on the roof of their property. Mr Jones removed the roof lining. Upon inspection,  it  was  found  to  contain  asbestos.  WorkSafe New Zealand issued a non-disturbance notice to Mr Jones.

[5]    Mr Jones contacted Asbestos Solutions regarding decontamination of the asbestos. On 11 June 2021, Asbestos Solutions sent Mr Jones a quote for $33,353.50. The quote was addressed to “PJ Home Improvements”.

[6]    There is no company with the name PJ Home Improvements. PJ Home Improvements is a trading name. Mr Jones says that it is a trading name used by his company Focused Property Management Group Ltd, rather than by himself personally.

[7]    Subsequently Mr Jones contacted Adam Lambert, an employee of Asbestos Solutions, to accept the quote. As discussed below, whether Mr Jones accepted the quote on his own behalf or on behalf of the Harduars is in dispute.

[8]    Asbestos Solutions carried out the work in January 2022. On 25 January 2022, Asbestos Solutions sent an invoice to PJ Home Improvements for the agreed amount.

1      Asbestos Solutions Ltd v Jones [2023] NZDC 3560.

Summary judgment proceedings

[9]    When Mr Jones did not make payment, Asbestos Solutions issued proceedings in the District Court seeking summary judgment for $33,353.50, plus interest and costs.

[10]   Mr Jones represented himself in the District Court. He filed a notice of opposition and affidavit in support. The documents were filed late. Also, because he had COVID-19 at the time, he was not able to swear his affidavit. He filed the affidavit unsworn. The affidavit was accepted by the Registry. He was not told by the Registry he needed to file a sworn version of the affidavit and he did not do so.

[11]   When it became apparent to Mr Jones on the day of the summary judgment hearing that it was a problem that his affidavit was unsworn, it was not possible for him to remedy the problem by swearing it before the Registrar. This was because he had COVID-19 again and therefore attended the hearing by VMR.

District Court decision

[12]   The Judge began by addressing the issue of the late filing of the notice of opposition and affidavit. The Judge refused to grant leave in respect of the late filing.2 The reason that the Judge gave for refusing leave was that the affidavit was unsworn. The Judge concluded that, because the affidavit was unsworn, it could not be read. Accordingly, there was no evidence before the Court that Mr Jones had a substantial ground of defence. For that reason, leave to file out of time was declined.3

[13]   The Judge then went on to determine the application for summary judgment. In view of the Judge’s decision to refuse to accept the late filing, this was straight forward. As there was no material before the Judge to indicate any ground of defence, summary judgment was entered for the amount of the claim.4

2 At [40].

3      At [39]–[40].

4 At [42].

Grounds of appeal

[14]   Two grounds of appeal were advanced for Mr Jones. First, the Judge should have read the affidavit on the basis that Mr Jones undertook to file a sworn copy at his earliest opportunity, or, alternatively the proceeding should have been adjourned to allow time for Mr Jones to file a sworn copy of his affidavit.

[15]   Second, Asbestos Solutions failed in its duty to disclose in its supporting affidavit for summary judgment all facts of which it was aware that could amount to a defence.

[16]   Consequently, Mr Jones says a miscarriage of justice has occurred and the matter ought to be remitted back to the District Court for a defended summary judgment hearing. Alternatively, the  High  Court  should  consider  the  merits  of Mr Jones’s opposition to summary judgment.

Further evidence

[17]   Both parties sought leave pursuant to r 20.16 of the High Court Rules 2016 to adduce further evidence in support of the appeal. Mr Jones sought to file a sworn affidavit that annexed his unsworn affidavit and confirms that the contents of the affidavit are true and correct. For reasons that will become apparent from what I say below, I grant leave to Mr Jones to adduce this further evidence.

[18]   However, I do not grant leave in relation to any of the other evidence the parties seek to adduce. Mr Jones sought to file a further sworn affidavit which attached emails and a company search for his company Focused Property Management. Asbestos Solutions sought leave to rely on a decision of an adjudicator in an adjudication under the Construction Contracts Act 2002 between the Harduars and Mr Jones.

[19]   The evidence in Mr Jones’s further affidavit is not fresh. It is evidence that could have been provided in the District Court. The further evidence that Asbestos Solutions seeks to adduce is fresh but not cogent. It does not assist me to resolve the dispute.

Decision regarding the unsworn affidavit

[20]   Rule 9.63 of the District Court Rules 2014 says that an affidavit may be read and used in a proceeding only if it has been sworn or affirmed.   However, under      r 1.8(1), a failure to comply with a requirement of the rules must be treated as an irregularity and does not nullify any document in the proceeding.   Further, under     r 1.8(2), the Court has a discretion as to whether to set aside any document in the proceeding on the ground that there has been a failure to comply with the rules, or to “make any order dealing with the proceeding generally as it thinks just.”

[21]   Thus, the Judge had a discretion regarding what to do with the affidavit. He could treat it as a nullity, or he could decline to do so.

[22]   The discretion under r 1.8(2) is to be exercised judicially and the Court may look at all the circumstances.5 In some cases, the courts have refused to read unsworn affidavits6 but in others they have been prepared to read them.7

[23]   The Judge considered that there is a distinction between cases in which there has been an attempt to swear the affidavit but it has been sworn in a manner that does not comply with the rules and cases in which there has been no attempt to swear the affidavit at all. The Judge concluded that in the former situation the courts have been prepared to overlook the irregularity but in the latter case the courts cannot or will not do so.8

[24]   In my view, this was an error. I agree that the distinction recognised by the Judge may be a significant one in many cases. However, it is not a hard and fast rule that an affidavit that has not been sworn at all cannot be read. Ultimately, each case turns on its own facts. In many cases, it will be inappropriate for an unsworn affidavit to be read but in some cases it will not.

5      Zaza v Beckett (1998) 12 PRNZ 415 (HC) citing Metroinvest Anstalt v Commercial Union Assurance Co Ltd [1985] 2 All ER 318 (CA).

6      Roberts v Thompson (1995) 2 NZPC 446 (HC).

7      Eastridge Ltd v Oceanic Life Ltd (1997) 2 NZPC 651 (HC); Mawhinney v Commissioner of Inland Revenue [2017] NZHC 2195; Westview Medical Centre Ltd v Quadstar Housing Ltd HC Auckland CP35-IM/01, 17 May 2001; and Ryan v Treeways 2000 Ltd HC Napier CP50/93, 27 February 1996.

8      Asbestos Solutions Ltd v Jones, above n 1, at [32]–[33].

[25]   Mr Delic placed some emphasis on the fact that r 9.63 is not the same as the equivalent rule in the High Court Rules (r 9.73). The first part of High Court r 9.73 is the same as r 9.63. However, r 9.73 contains additional sub-rr (4) to (6) that give a Judge or the Registrar the power to accept for filing and read an affidavit that has not been sworn in particular circumstances. Mr Delic submitted that this means that the High Court has the power to read unsworn affidavits whereas the District Court has no such power.

[26]   I do not think this argument is correct. Rule 9.73(4) to (6) were added to the High Court Rules to provide a solution to the problem of having affidavits sworn during the COVID-19 pandemic.9 These additional provisions mean that the High Court has an additional power to read unsworn affidavits, but they do not in any way limit the general and flexible discretion the District Court has under r 1.8(2) of the District Court Rules to decide whether to read an unsworn affidavit.

[27]   Under r 7.35 of the District Court Rules the Court has a broad discretionary power to adjourn an interlocutory application if it is in the interests of justice to do so.

[28]   I agree with Mr Cornegé that the Judge should have read the affidavit on the basis that Mr Jones undertook to file a sworn copy at his earliest opportunity, or, alternatively the proceeding should have been adjourned to allow time for Mr Jones to file a sworn copy of his affidavit. I say this for the following reasons.

[29]   First, Mr Jones was self-represented. In general, the courts are more tolerant of failure to comply with the rules when parties are representing themselves.

[30]   Second, Mr Jones was not told to file a sworn version of the affidavit. The Registry accepted it unsworn and did not tell him to file a sworn version. It is true that a memorandum of counsel for the plaintiff filed and served on 19 December 2022, around two months before the summary judgment hearing, said that the affidavit was invalid because it was unsworn. However, the focus of the memorandum of counsel was the late filing of the documents. The affidavit was only mentioned in three out of 15 paragraphs and only one paragraph addressed why the affidavit was non-compliant.

9      High Court (COVID-19 Preparedness) Amendment Rules 2020, r 17 and Explanatory Note.

The conclusion of the memorandum was that the plaintiff “opposes the granting of leave to file out of time, and counsel respectfully seeks that leave be denied.” The Judge’s minute in response to the plaintiff’s memorandum of 19 December 2022 simply said, “[b]oth matters i.e. the leave to file late, and the summary judgment application will be heard on 22nd February 2023, at 11:00am.” It did not mention the affidavit at all.

[31]   Third, although Mr Jones had not sworn his affidavit, it was clear that he wanted to rely on its contents. This is not a situation in which there was any doubt that the intended deponent stood by what was said in the unsworn affidavit.

[32]   Fourth, had Mr Jones been told at the hearing to file a sworn version of the affidavit and he been given further time, he certainly would have done so.

[33]   Fifth, a short adjournment would have caused Asbestos Solutions little or no prejudice.

[34]   Because I have accepted Mr Jones’s first ground of appeal, I do not need to consider his second ground of appeal that Asbestos Solutions failed in its duty to disclose in its supporting affidavit for summary judgment all facts of which it was aware that could amount to a defence.

Should the matter be remitted back to the District Court?

[35]   Mr Jones submitted that, should I accept his arguments regarding the unsworn affidavits, I ought to remit the matter back to the District Court for a defended summary judgment hearing. Alternatively, he submitted that I should consider the merits of his defence to the summary judgment application. I have concluded that, to avoid further delay and costs to the parties, I should take the latter course.

Mr Jones’s defence to summary judgment

[36]   Mr Jones’s defence is that he did not enter into the agreement with Asbestos Solutions. The agreement was between them and Asbestos Solutions. Alternatively, Mr Jones says that the contract was not between Asbestos Solutions and himself

personally, but rather between Asbestos Solutions and his company Focused Property Management.

The parties’ affidavit evidence

[37]   Neither side has produced or referred to any written communications relating to Asbestos Solutions’ quote or its acceptance. However, there is relevant material in the affidavits regarding these matters.

[38]   The affidavit of Brian Butt, a director of Asbestos Solutions, in support of the application for summary judgment says that, after the company provided its quote, there were some communications between Mr Jones and Mr Lambert about practical matters. Then he simply says that Mr Jones accepted the quote on 26 October 2021. He does not provide any information about how this occurred.

[39]   Mr Jones’s evidence in his unsworn affidavit concerning what he did after he received Asbestos Solutions’ quote is:

I contacted Adam Lambert and passed on the owner’s wish to go ahead. I asked if any funds were required that his previous advice about establishment of much actual work was required will take place on the first day at site.

Mr Lambert set a day in place for January 2022 commencement. I asked him what sort of deposit did the owners need to pay and he said that no funds were needed as the full value would not be established until the team were onsite and that there will be a discussion with the owners of the property about that. He said payment upon completion was their expectation.

[40]He goes on to say that:

Alan Jones trading as PJ Home Improvements did not give the go ahead to Asbestos Solutions Limited on the basis of Alan Jones Trading as PJ Home Improvements being the contracted client. Should I have been knowingly entering into a contractual agreement with Asbestos Solutions Limited, I would have raised a purchase order under my Company Focused Property Management Group Limited, trading as PJ Home Improvements and would have signed a contract of acceptance.

[41]   Mr Jones also gives evidence that Asbestos Solutions had dealings directly with the Harduars. That this is so is confirmed by an email sent by Ganesh Harduar to Mr Lambert  on  26  November  2021  which  refers  to  a  discussion  between  Mr Harduar and Mr Lambert “3–4 weeks ago”.

[42]   Mr Jones says further that he did not meet with Asbestos Solutions personnel the first day they were on site. The on-site discussions took place between Asbestos Solutions and the Harduars directly. However, Mr Jones acknowledged that he continued to be involved because he had overall responsibility for the Harduars’ renovations and he was their advisor.

[43]Finally, Mr Jones concludes his affidavit with the following:

Should Your Honor find Alan Jones trading as PJ Homes Improves be Liable for payment and you approve the Applicants Application, may you please have the liability directed to be in the name of my Company, Focused Property Management Group Limited as that is the entity that we would have raised a purchase order from if we were making purchases of cost, and I was not provided with any documentation to sign where I provided a personal guarantee.

Law regarding conflicting affidavits in a summary judgment application

[44]   As a general rule, in determining summary judgment applications, the Court will refrain from attempting to resolve genuine conflicts of evidence or from assessing the credibility of the parties’ statements in their affidavits. However, the Court is not bound:10

to accept uncritically, as raising a dispute of fact which calls for further investigation, every statement on an affidavit however equivocal, lacking in precision, inconsistent with undisputed contemporary documents or other statements by the same deponent, or inherently improbable in itself it may be.

Decision regarding defence to summary judgment

[45]   In my view, despite the matters contained in Mr Jones’s affidavit set out above, it is safe to conclude that he does not have an arguable defence to Asbestos Solutions’ claim. I say this for the following reasons.

[46]   The quote was addressed to PJ Home Improvements, not to the Harduars, and there is no evidence that Mr Jones asked for it to be re-addressed to the Harduars. As Mr Delic submitted, had Mr Jones genuinely thought that the agreement was with the

10     Eng Mee Yong v Letchumanan [1980] AC 331 (PC) at 341, cited with approval in Pemberton v Chappell [1987] 1 NZLR 1 (CA).

Harduars, he would surely have emailed Asbestos Solutions asking for it to be re-addressed.

[47]   The invoice was also addressed to PJ Home Improvements, not the Harduars, and again there is no evidence that Mr Jones asked for it to be re-addressed to the Harduars. As noted above, the invoice was sent on 25 January 2022. There was no email in response from Mr Jones asking for the invoice to be re-addressed to the Harduars. Nor did he respond when the invoice was sent to him again on 16, 23 and 28 February 2022 or when Greg Peebles, the chairman of Asbestos Solutions, wrote to him demanding payment on 6 April 2022.

[48]   On 6 March 2022, Mr Jones emailed Mr Lambert regarding further work that he considered was required. In this email he said, “[o]nce the job is completed I need the invoice so that I can obtain the funds as discussed with you when the booking was made.” This suggests that Mr Jones envisaged that he would be paying the invoice for further work, albeit he would be obtaining funds from the Harduars to meet the payment.

[49]   When Asbestos Solutions’ solicitors wrote to Mr Jones on 12 May 2022, he responded in an email the same day saying, among other things:

…we accepted the quote on behalf of a property owner, not ourselves, its not a case of me being a delinquent at all

…

…I can not pay your client until the funds situation have been sorted with the property owner

the above is not really of concern to your client, however it is what’s going on.

…

It might seem easy to target me as the contract was with me, however I can assure you that for payment to be made it would be better to have a meeting with me, and we can sort this so that the company that needs to be paid is paid.

[50]   Mr Jones said in his unsworn affidavit that he made a spelling error in the final sentence quoted above. He says what he meant to say was, “It might seem easy to target me as the contact was with me…”. Even if I take this at face value and put this

sentence to one side for present purposes, the email still conflicts with Mr Jones’s defence because, again, it envisages that Mr Jones will be paying the invoice for the further work, albeit he will be obtaining funds from the Harduars.

[51]   The email from Mr Harduar to Mr Lambert dated 26 November 2021 referred to above and relied upon by Mr Jones also conflicts with his defence. It says:

I spoke to you about 3–4 weeks ago after 3 Guys Maintenance had commissioned your company Asbestos Solutions Limited … to remove the asbestos contamination at the above address…

3 Guys Maintenance is another trade name used by Mr Jones. The email, which was copied to Mr Jones, is significant because it said that 3 Guys Maintenance had commissioned Asbestos Solutions, not the Harduars themselves.

[52]   Finally, there is no mention of Mr Jones’s company Focused Property Management in any of the emails or other documents. The only place the company is mentioned anywhere in evidence is in the paragraphs of Mr Jones’s unsworn affidavit quoted above and it is implicit in those paragraphs that he never mentioned the company to Asbestos Solutions (because it never raised a purchase order).

[53]   Taking everything into consideration, the clear impression I am left with is that the contract was with Mr Jones trading as PJ Home Improvements. In a colloquial sense Mr Jones entered the agreement on behalf of the Harduars, but in a legal sense he was the contractual party. The Harduars contracted with him to carry out the renovations and he subcontracted the asbestos remediation work to Asbestos Solutions. He had the legal obligation to pay Asbestos Solutions’ fee, albeit he was expecting to receive funds from the Harduars under the head contract he had with them.

[54]   For these reasons, I am satisfied that Mr Jones has no arguable defence to Asbestos Solutions’ claim. Accordingly, I consider that the Judge was right to enter summary judgment in favour of Asbestos Solutions, albeit that I have reached this result by a different means.

Result

[55]The appeal is dismissed.

Costs

[56]   Mr Jones is legally aided. Accordingly, s 45(2) of the Legal Services Act 2011 applies. This means that no order of costs may be made against Mr Jones unless I am satisfied that there are “exceptional circumstances”. In Ngati Tama Custodian Trustee Ltd v Phillips the Court of Appeal said that for circumstances to be exceptional, they must be “quite out of the ordinary”.11

[57]   Asbestos Solutions essentially makes two points in support of its position that there are exceptional circumstances here. First, it refers to the fact that Mr Jones delayed in appealing. This meant that Asbestos Solutions took additional steps, including issuing a bankruptcy notice and commencing adjudication proceedings. Second, Mr Jones’s defence to summary judgment was “always doomed to fail”.

[58]   I am not satisfied that the high threshold of “exceptional circumstances” is met. Mr Jones’s delay is regrettable, but it does not mean that the case is quite out of the ordinary. While ultimately I found that Mr Jones has no arguable defence, I do not think that it would have been obvious to him that his defence was doomed to fail.

[59]For these reasons, I make no order as to costs.

Blanchard J

11     Ngati Tama Custodian Trustee Ltd v Phillips [2020] NZCA 252, (2020) 25 PRNZ 465 at [7] quoting, Laverty v Para Franchising Ltd [2006] 1 NZLR 650 (CA) at [31].