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 his counsel at about the time

his evidence was due to be served on the plaintiffs outweighed the disadvantage which the plaintiffs would suffer if the proceeding was adjourned.

[5]    I observed in the minute that it appeared from an examination of the file that Mr Chevin had been a serial non-complier with Court orders, particularly orders requiring him to move his conduct of the proceeding forward. I did not, however, strike out Mr Chevin’s  defence  forthwith  but  made  an  unless  order  requiring  Mr Chevin to file his evidence and provide additional documents for the common bundle by 5.00 pm on Thursday, 11 March 2021, which I considered would allow a reasonable time for the plaintiffs to prepare for trial. I amended the timetable for the filing and service of the bundle of documents by the plaintiffs and the filing and service of the plaintiffs’ opening. I ordered that if Mr Chevin did not comply with the direction for the filing of his briefs of evidence and documents, his defence in the proceeding would be struck out and the plaintiffs’ claim heard by way of formal proof.

[6]    On 18 March 2021, having failed to file briefs of evidence and documents, Mr Chevin filed an application for leave to appeal against the orders made on 5 March 2021. This judgment concerns that application. The application is opposed by the plaintiffs who filed a notice of opposition dated 23 March 2021. As Mr Chisholm QC has pointed out  in  the  plaintiffs’  submissions  opposing  the  leave  application,  Mr Chevin was required to seek leave to appeal the Court’s refusal to grant him an adjournment of the fixture but he did not need leave to appeal the strike out orders made in the minute of 5 March 2021.1

[7]    Van Bohemen J heard the plaintiffs’ case by formal proof on 22 March 2021 and gave a judgment in favour of the plaintiffs on 29 March 2021.2

[8]    On 21 April 2021, I directed that Mr Chevin had until 5.00 pm on 30 April 2021 to file and serve any submissions in support of his application for leave and that the plaintiffs’ submissions in opposition should be filed and served on Friday, 7 May 2021.   On reflection, I could have dealt with the matter then: I am satisfied that     Mr Chisholm is right that the leave of the Court was not necessary for Mr Chevin to

1      Senior Courts Act 2016, s 56(3) and (4).

2      Avon Parnell Ltd v Chevin [2021] NZHC 650.

appeal against the strike out order and that the appeal against the refusal of the adjournment had become academic on account of the delivery of van Bohemen J’s judgment on 29 March 2021.

[9]    I note, in passing, that consistently with his approach to this proceeding and the orders and directions made by the Court in connection with it, Mr Chevin filed no submissions by 30 April 2021 in support of his leave application but simply sent an email to the Registry on 5 May 2021 saying that he was unsure of what the procedure was and asking whether there was an oral hearing or further documents required from him.

[10]   Leave not being required for Mr Chevin to appeal against the strike out order, and the refusal of the adjournment application being academic in light of the substantive judgment, Mr Chevin’s application for leave  to  appeal  is  dismissed. Mr Chevin shall pay the plaintiffs’ costs on this application on a category 2B basis.

Toogood J