Avon Parnell Limited v Chevin - [2021] NZHC 1321

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-1119

[2021] NZHC 1321

BETWEEN
AVON PARNELL LIMITED

First Plaintiff

RYAN MATTHEW LEGGATT
Second Plaintiff

AND

PETER LOUIS CHEVIN

First Defendant

CLARK VINCENT VALMONT and RUSSELL PKR TRUSTEE LIMITED
Second Defendants (Discontinued)

GRAEME HAYWARD SKEATES

Third Defendant (Discontinued) …/contd

On papers

Judgment:

4 June 2021

JUDGMENT OF TOOGOOD J

[Application for leave to appeal]

This judgment was delivered by me on 4 June 2021 at 4.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Brown Partners, Auckland for plaintiffs
Copy to:
The first defendant

AVON PARNELL LTD v CHEVIN [2021] NZHC 1321 [4 June 2021]

NORTHERN INVESTORS TRUSTEE LIMITED
Fourth Defendant

VIADUCT HARBOUR NOMINEES LIMITED
Fifth Defendant

BASECORP FINANCE LIMITED
Sixth Defendant (Discontinued)

AND TIMOTHY LAIRD EDNEY

Third Party (Stayed)

The procedural history

[1] On 27 February 2020, Associate Judge Bell set down for hearing the plaintiffs’ claims against Mr Chevin and other defendants alleging misrepresentation and knowing receipt/dishonest assistance and seeking relief in connection with a loan agreement and related securities. The Associate Judge made timetable orders that were amended in part by Moore J in a minute dated 5 November 2020. The fixture for 22 March 2021 was confirmed, however. The amended timetable required Mr Chevin to file his briefs of evidence and any further documents for the common bundle by 15 February 2021.

[2] Following an application on 12 February 2021 by Mr Chevin’s solicitor and counsel for leave to withdraw, Mr Chevin requested an adjournment of the fixture. On 18 February 2021, he was directed to file a formal application for an adjournment by
5.00 pm on Tuesday, 23 February 2021 and to file evidence relating to the health issues to which Mr Chevin had referred. Mr Chevin did not file an application for adjournment by the 23 February 2021 deadline. On 24 February 2021, his solicitor and counsel was granted leave to withdraw. Mr Chevin did not file any briefs of evidence.

[3] On 2 March 2021, on the grounds of Mr Chevin’s non-compliance with the timetable, the plaintiffs filed an urgent interlocutory application for orders that Mr Chevin’s defence to their claims should be struck out and that the proceeding should go to formal proof. That day, Mr Chevin indicated that the application for a strike out order and formal proof was opposed and he sought an adjournment of the proceeding.

[4] I convened an urgent hearing by Virtual Meeting Room on 3 March 2021 and received submissions from Mr Chevin and from counsel for the plaintiffs, Mr Chisholm QC. On 5 March 2021, I issued a detailed minute, setting out the background to the adjournment application and the plaintiffs’ application for strike out and formal proof. For reasons given at some length, I rejected Mr Chevin’s purported medical grounds for the adjournment. I held that I was not persuaded that the disadvantage suffered by Mr Chevin by the withdrawal of…

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: [2021] NZHC 1321
Decision Date: 4 June 2021

CaseChat Overview and Summary

In the case of Avon Parnell Limited v Chevin, the plaintiffs, Avon Parnell Limited and Ryan Matthew Leggatt, brought claims against Peter Louis Chevin, alleging misrepresentation and knowing receipt/dishonest assistance in connection with a loan agreement and related securities. The matter was set for hearing on 22 March 2021, with Mr. Chevin required to file briefs of evidence by 15 February 2021. Despite being directed to file an application for adjournment and evidence of his health issues by 23 February 2021, Mr. Chevin failed to comply with the Court’s orders. Consequently, the plaintiffs filed an urgent interlocutory application for Mr. Chevin's defence to be struck out and for the proceeding to go to formal proof. The Court rejected Mr. Chevin's request for an adjournment, finding that his non-compliance with the timetable and serial non-compliance with Court orders warranted the striking out of his defence if he failed to comply with further directions. Mr. Chevin then applied for leave to appeal against the orders made by the Court, which was opposed by the plaintiffs.

The legal issues before the Court were whether Mr. Chevin’s application for leave to appeal was properly before the Court and, if so, whether leave to appeal should be granted. The Court noted that Mr. Chevin was not required to seek leave to appeal the strike out order, as per the Senior Courts Act 2016. Additionally, the refusal of the adjournment application had become academic following the substantive judgment delivered by van Bohemen J on 29 March 2021. Despite being directed to file submissions by 30 April 2021, Mr. Chevin did not comply with this direction and instead sent an email to the Registry expressing uncertainty about the procedure. The Court concluded that Mr. Chevin’s application for leave to appeal was dismissed, and he was ordered to pay the plaintiffs’ costs on a category 2B basis.

In summary, the Court found that Mr. Chevin's application for leave to appeal was not properly before it as leave was not required for the appeal against the strike out order. Additionally, the refusal of the adjournment application had become academic with the delivery of the substantive judgment. The Court dismissed Mr. Chevin’s application for leave to appeal and ordered him to pay the plaintiffs' costs on a category 2B basis.

Orders