Bartlett v Grant

[2020] NZHC 2359

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2020-404-001525

[2020] NZHC 2359

UNDER

Sections 34 and 35 of the Receiverships Act 1993 and Part 19 of the High Court Rules

IN THE MATTER OF

DOUGLAS JAMES BARTLETT

(in receivership)

BETWEEN

DOUGLAS JAMES BARTLETT

Applicant

AND

DAMIEN MITCHELL GRANT

Respondent

Hearing:

On the papers

Counsel:

D S McGill for the Applicant

No appearances for the Respondent

Judgment:

10 September 2020

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 10 September 2020 at 4.00pm Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:

Duncan Cotterill, Auckland

BARTLETT v GRANT [2020] NZHC 2359 [10 September 2020]

Introduction

[1]        The applicant applies, without notice, for leave to bring this proceeding by way of originating application, and for directions as to service. The applicant also seeks a first call of the originating application as soon as possible.

[2]       The without notice application is accompanied by two affidavits in support, and by a clear and comprehensive memorandum of counsel.

[3]       The originating application would seek orders under ss 34 and 35 of the Receiverships Act 1993. Applications for orders under those sections do not fall within rule 19.2 of the High Court Rules 2016. Leave under rule 19.5 to bring the proceeding by way of originating application is therefore necessary. Such leave may be sought without notice: rule 19.5(2).

[4]       Leave may be granted if it is in the interests of justice to do so: rule 19.5(1). The onus is on the applicant to establish that that test is satisfied. In determining whether leave is in the interests of justice, a key consideration is that the originating application procedure under Part 19 is appropriate for cases where it is not necessary to have full pleadings and interlocutory steps for the proper determination of the issues.

[5]       Having read the affidavits and the memorandum, I am of the view that the interests of justice favour granting leave under rule 19.5. It is apparent that the proceeding will turn primarily on questions of interpretation of a deed. If there are any factual disputes, they are likely to have a narrow compass.

[6]       I am also of the view, based on the affidavits and memorandum, that the pleadings should be served on the interested parties set out in the interlocutory application (as well, of course, as on the respondent).

Result

[7]       I grant leave to the applicant to bring this proceeding by originating application under Part 19 of the High Court Rules 2016.

[8]       The proceeding shall be served on the respondent and on the following interested parties: Asset Lease NZ Limited; AJO Trustee Company Limited; Kiwibank Limited; Rudiger Bublitz (the director of Aisleworx Group Limited).

[9]The application shall be called for mention before a Duty Judge on

23 September 2020 at 10am.

Campbell J