Antons Trawling Ltd v Dawson & Associates Ltd - [2016] NZHC 980

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CIV 2014-442-070 [2016] NZHC 980

BETWEEN
ANTONS TRAWLING LIMITED

Plaintiff

AND

DAWSON & ASSOCIATES LIMITED Defendant

Hearing: 21 April 2016 (via teleconference)

Counsel:

C M Meechan QC for Plaintiff
M C Harris and O Ostrovsky for Defendant

Judgment:

16 May 2016

JUDGMENT OF BROWN J

[1] This proceeding was heard in Nelson over a two week period in February this year. At the conclusion of the hearing on 18 February 2016 I reserved my judgment.

[2] On 2 March 2016 the plaintiff filed an application in reliance on ss 98 and 99 of the Evidence Act 2006 for an order granting leave to adduce further evidence subsequent to the trial, namely a digital recording of a telephone conversation between Mr Barbarich, Mr Dawson and Mr Baker of ASB Bank Limited which occurred on 8 September 2009.

[3] The evidence which the plaintiff seeks to adduce relates to the third particular of claim in para 14 as amended, namely the allegation that the defendant misadvised Antons as to its (Dawson’s) obligations to release the vendor finance funds, advising Antons that it had given an undertaking to do so and there was no legal basis upon
which Dawsons could retain the funds.

ANTONS TRAWLING LTD v DAWSON & ASSOCIATES LTD [2016] NZHC 980 [16 May 2016]

[4] At the trial Mr Barbarich had given evidence that Mr Dawson advised him in the course of a telephone discussion on or about 29 September that Mr Dawson had given an undertaking to pay certain funds away.

[5] Although Mr Dawson had not directly engaged with that contention in his brief of evidence, in the course of cross examination he said that he had no recollection of using those words. Indeed he said that the allegation that he would have used that terminology struck him as so unusual that he did not think it needed to be commented on. He stated that he would be surprised if he had used the word “undertaking”.

[6] In his affidavit in support of the application Mr Barbarich explained how he had a practice of recording telephone conversations using the function on his computer which was linked to the telephone system. The hard drive on the computer that he had at the time had become corrupted in about March 2009 and it was removed and a new hard drive installed.

[7] He said that in preparing his evidence he had been aware of the potential significance of the 29 September 2008 conversation and had made a search of the office and archives for the hard drive but had been unable to find it. On
3 February 2016 he had located three hard drives which were sent to a firm called Computer Forensics to investigate whether there was any way of recovering data from them. On his return to Auckland after the first week of the trial he was advised that it had been possible to restore the data from the…

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: [2016] NZHC 980
Decision Date: 16 May 2016

CaseChat Overview and Summary

The High Court of New Zealand, Nelson Registry, presided over by Brown J, dealt with a case between Antons Trawling Limited, the plaintiff, and Dawson & Associates Limited, the defendant. The primary dispute revolved around an allegation that the defendant misadvised the plaintiff regarding the release of vendor finance funds. The plaintiff sought to adduce additional evidence in the form of a digital recording of a telephone conversation, which allegedly took place between Mr. Barbarich, Mr. Dawson, and Mr. Baker of ASB Bank Limited on 8 September 2009. The plaintiff argued that this recording was critical in substantiating their claim that the defendant had given an undertaking to release the funds and that there was no legal basis for retaining them.

The legal issues before the court were whether the plaintiff's application to adduce further evidence after the trial should be allowed and if this new evidence would substantially impact a central issue in the case. The plaintiff contended that the recording was crucial to determining whether the defendant had indeed given an undertaking in a conversation with Mr. Barbarich on 29 September 2008, as the defendant had denied during cross-examination. The defendant argued that the plaintiff had not adequately explained the late production of the recording and that the evidence would not significantly impact the case.

The court considered the principles governing the admission of additional evidence, noting that such discretion should be exercised sparingly and only in exceptional circumstances. The court examined whether the new evidence could have been produced earlier with reasonable diligence, whether it was likely to have a substantial bearing on a central issue, and its credibility and reliability. The court found that while the plaintiff's explanation for the late production of the recording was reasonable, the evidence itself did not substantially impact the central issue of whether the defendant's advice was negligent. The court concluded that the reference to an undertaking, even if used, was not critical to the plaintiff's claim that the defendant advised the funds had to be released. Consequently, the plaintiff's application was declined.

In summary, the court declined to admit the additional evidence as it did not meet the standard of having a substantial bearing on a central issue. The court emphasized that the core of the plaintiff's complaint was about the negligent advice regarding the release of funds, rather than the specific terminology used in the conversations.

Orders