Ballantyne Trustees Limited v HFK Limited

[2023] NZHC 2512

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2015-409-173

[2023] NZHC 2512

BETWEEN

BALLANTYNE TRUSTEES LIMITED

First Plaintiff

AND

SENG BOU KEUNG

Second Plaintiff

AND

HFK Limited First Defendant

AND

KIERAN ANNE HORNE

Second Defendant

Hearing:	7 August 2023
Appearances:	Second plaintiff appeared in person J Eckford for the Defendants
Judgment:	7 September 2023

JUDGMENT OF HARLAND J

APPLICATION FOR ADJOURNMENT OF TRIAL

[1]                 On 7 August 2023, I part-heard the plaintiffs’ interlocutory application for the adjournment of the 10 day trial allocated to commence in the Christchurch High Court on 3 October 2023. The application was adjourned by me part-heard to enable further medical information to be provided by Mr Keung.

[2]                 Mr Keung has provided the requested information and it has been released to counsel for the defendants on conditions. More will be said about all of this shortly. The short point is, having reviewed the medical evidence provided, the other evidence

BALLANTYNE TRUSTEES LTD v HFK Ltd [2023] NZHC 2512 [7 September 2023]

and the submissions by the parties, I have decided to grant the application for adjournment.

[3]I set out my reasons for doing so below.

The application for adjournment

[4]                 The grounds for the adjournment were set out by the plaintiffs in their amended interlocutory application1 as follows:

(a)  The plaintiffs’ previous counsel have been granted leave to withdraw from this proceeding and the plaintiffs have been unable to find new solicitors or counsel willing to appear in October 2023.

(b)  The trial is expected to take longer than the ten days.

(c)  If a trial date in late 2024 were allocated, the plaintiffs would have time to prepare for trial and instruct new lawyers and those new counsel would have time to properly prepare for the trial.

(d)  If the trial is not vacated, the plaintiffs will be prejudiced and deprived of the right to be represented at trial.

(e)  At the time the current trial was allocated, the plaintiffs did not expect they would not be legally represented.

(f)  The ongoing medical condition of Mr Keung has prohibited him from being active in preparation for the hearing and also guaranteeing his effective capacity and availability for a Court hearing in October 2023.

(g)  That the change of hearing date from 24 September 2024 to 2 October 2023 was extremely prejudicial and has caused many of the issues before the court today.

1      Dated 28 July 2023.

[5]                 The application was accompanied by an affidavit from Mr Keung dated 20 July 2023, comprising some 50 paragraphs and including a large number of annexures. A memorandum was also provided supporting the application and responding to the defendants notice of opposition to it, which was followed by a further memorandum signed by Yvonne Ballantyne, the director of Ballantyne Trustees Ltd, one of the first plaintiffs, dated 6 August 2023.

[6]In summary and distilled, the main grounds for the application are:

(a)  the plaintiffs require new solicitors or counsel to represent them in this proceeding which will not be able to be achieved by the hearing date;

(b)  the trial is expected to take longer than the allocated 10 days; and

(c)  Mr Keung’s ongoing medical condition has affected his ability to prepare and be available for the hearing.

The notice of opposition

[7]                 The defendants oppose the application for adjournment. The grounds outlined in their notice of opposition are:

(a)  It is not in the interests of justice to adjourn the trial. The matter has been on foot since 2015 and the events complained of date back to 2009. Trial of the matter has already been adjourned twice on the application of the plaintiffs;

(b)  The plaintiffs have been on notice since February 2023 (if not earlier) that new solicitors and counsel were required. There is sufficient time for new counsel to be instructed. There is a significant history in this proceeding of the plaintiffs changing counsel.

(c)  Although the plaintiffs have, without particularity, foreshadowed applications for further discovery and/or to adduce additional briefs of evidence, no application for leave to apply for further discovery or briefs has been made and such applications would be opposed. The defendants’ discovery was produced on 28 April 2016 and applications for further

discovery and non-party discovery were made and determined in 2020- 2021, with no further documents disclosed.

(d)  The timeframe of 10 days is sufficient and indeed was the subject of significant consideration by the Court last year. The extension of the trial from 7 to 10 days was a significant factor in the adjournment of the trial date in October 2022; and

(e)  The alleged prejudice to the plaintiffs in having to instruct new counsel, which appears to be self-inflicted, pales when compared to the prejudice to the defendants facing a third adjournment of trial in a proceeding that has been pursued only fitfully by the plaintiffs since filing in 2015.

[8]                 The notice of opposition was accompanied by an affidavit of Mr Bielby and a memorandum of counsel. Mr Bielby’s affidavit, comprising some 29 paragraphs, outlines, among other things, a chronology of the litigation thus far, which was later supported by chronology prepared for the defendants dated 4 August 2023. The plaintiffs dispute the chronology but, because this does not form a significant part of the reasons for my decision, I do not address the detail.

[9]                 While not unsympathetic to Mr Keung’s health situation, the information Mr Keung initially provided to the Court was not provided to counsel for the defendants to enable them to make an informed decision about his difficulties. As well, and understandably, the defendants express their considerable concern that the trial is being sought to be adjourned for the third time.

Discussion

[10]              The initial information provided by Mr Keung to support his medical condition was limited. As I have mentioned, it was not provided to counsel for the defendants prior to the hearing and unfortunately has not been provided to them subsequently. However, having reviewed it, I am satisfied there is no prejudice to the defendants because the medical information now provided is the information upon which I have based my decision and the initial information was less fulsome but of a similar ilk.

[11]              The medical evidence establishes that Mr Keung is currently suffering from the long term effects of various concussions he has received from three separate accidents that have occurred in the last 12 months. The medical report of Dr Morrison is compelling. Although counsel for the defendants takes issue with various aspects of the material provided, in the interests of justice and fairness, I cannot ignore Dr Morrison’s professional opinion outlined in paras 3 and 4 of the medical certificate dated 10 August 2023. It outlines that Mr Keung is fully unfit to attend to the requirements of a Court case, such as appearing as a witness or instructing new counsel. The document expresses the view that Mr Keung will remain fully unfit for a further six to 12 months based on his current status and symptoms. However, Dr Morrison notes it is expected that Mr Keung’s concussive symptoms will improve over time.

[12]              As the memorandum of Ms Ballantyne and Mr Keung dated 25 August 2023 reveals, although Mr Keung is the second plaintiff in his personal capacity, the first plaintiffs are a distinct and separate entity. I am satisfied that, at least on the information available to me, there is no basis for any contention that the plaintiffs are not willing to obtain or brief counsel or that there are financial constraints on them to do so.

[13]              There appear to be complaints by both parties about the reasons for the adjournments that have been granted in respect of this trial to date and with whom the fault for them lies. Little is to be advanced by traversing the various submissions about this, given that the main reason for my decision to adjourn this trial rests on Mr Keung’s medical condition and the fact that I am satisfied he is simply unable to assist the plaintiffs to properly prepare their case at this time. He is required to do so because he has the most knowledge about the issues in contention in the proceeding.

[14]              I did not understand Mr Keung to say however that he would not be in a position to assist with briefing new counsel and I note that it may be Ms Ballantyne and the first plaintiffs are required to step in to become more appraised of these proceedings or run them given Mr Keung’s health issues.

[15]              There is one further matter that requires comment. The memorandum filed on behalf of the plaintiffs dated 25 August 2023 signed by Ms Ballantyne and Mr Keung includes at the top of it “confidential and private”. There is nothing in the memorandum of 25 August 2023 which requires it to be confidential and private. Litigation is not conducted in this fashion. I made directions about the personal medical matters relating to Mr Keung to protect his privacy, however, it is not appropriate simply to not serve the other party with material another party wants the Court to consider without the Court first being advised of the reasons why, at law, such a course of action is warranted.

[16]              As the defendants’ outline, the proceeding is exceptionally old. It needs to be determined. The hearing date allocated for 2024 is no longer available. It is alarming to hear there is a suggestion that further interlocutory applications for discovery will be required and that the time required for trial may need to be effectively doubled. These matters need to be very closely case-managed and the plaintiffs need to be aware that, in fairness to the defendants, they will need to be in a position to action any further applications promptly. As I have mentioned, given Mr Keung’s health, this may require another person within the first plaintiffs to take responsibility for managing the proceedings until Mr Keung’s health improves.

[17]              Although I have directed that the trial be adjourned, I am referring it to Associate Judge Paulsen, who has some familiarity with it, to closely case-manage it from hereon in. No doubt he will allocate a case management conference in the near future. In the meantime, the plaintiffs are expected to expedite the appointment of new solicitors and counsel in order to progress the proceeding.

Harland J