BCH Investments Ltd v Nguy

[2021] NZHC 2360

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-000277

[2021] NZHC 2360

UNDER

The Companies Act 1993 and the Contract and Commercial Law Act 2017

BETWEEN

BCH INVESTMENTS LIMITED

Plaintiff/Respondent

AND

JESSE SEANG NGUY

Defendant/Applicant

WENBING ZHU (also known as WILSON ZHU)

Third Party

Hearing:	9 September 2021 (by VMR)
Appearances:	B Vautier for Plaintiff M Locke for Defendant
Judgment:	9 September 2021

JUDGMENT OF VENNING J APPLICATION FOR ADJOURNMENT

This judgment was delivered by me on 9 September 2021 at 3.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Glaister Ennor, Auckland

Turner Hopkins, Auckland

Counsel:            M Locke, Auckland

BCH INVESTMENTS LIMITED v NGUY [2021] NZHC 2360 [9 September 2021]

[1]                 The plaintiff’s claim against the defendant is scheduled to commence on 18 October 2021 (four days allocated). The defendant applies to vacate that fixture and for an adjournment of the trial.

[2]In support of the application for adjournment the defendant says:

(a)the plaintiff failed to comply with earlier timetable directions;

(b)notwithstanding the belated compliance by the plaintiff and a shortened trial duration, the delay has caused the defendant irreversible prejudice in his defence;

(c)an adjournment would be in the interests of justice as set out in the affidavit of Mr Nguy sworn and filed in support of the application.

[3]                   In his affidavit in support of the application Mr Nguy noted that the deadline for his exchanging of witness statements in response had been effectively reduced from six weeks (or 42 days) to 30 September 2021, which was 29 days. The difficulty that caused him was compounded by the constraints under the Level 4 lockdown.

[4]                 Mr Nguy also refers to a hearing against him by the Auckland Standards Committee of the New Zealand Law Society which is currently scheduled for 18 October, the same day as the commencement of the present trial.

[5]                 Next, Mr Nguy notes that his previous solicitors were given leave to withdraw and are pursuing him for fees. Mr Nguy then refers to his medical condition and annexes copies of affidavits prepared for the disciplinary proceedings to confirm his condition.

[6]                 Mr Nguy seeks an adjournment for a year which would enable him time to, in his words “either regroup, instruct new counsel, and prepare adequately for trial, or alternatively bankruptcy may intervene and the plaintiff will not be put to further expense in prosecuting its case.”

[7]                 The application is made under r 10.2 of the High Court Rules. The overriding issue is the interest of justice.

[8]                 As Moore J observed when declining the plaintiff’s informal application for adjournment of the trial:1

[16]      Litigants are entitled to have their cases resolved with reasonable expedition. The public is entitled to the efficient dispatch of justice, the parties’ interests represent only one component of the various matters which this Court is required to take into account in considering where the interests of justice lie on an application to adjourn. While the litigants’ views may converge, even to the point of consent in some cases, the consequences of an adjournment to litigants engaged in other, unrelated litigation, must also be taken into account. Adjournments have a “knock on” effect. An adjournment means that the Court must find further time at a later date. At the present time, the pressures on the Court system are very considerable. The lists are very full and the demand for fixture time is high, particularly following the consequences of elevated COVID alert levels.

[17]      As counsel and parties will be aware, Court hearing time is scare and the fact that some settlement negotiations have been underway should not have stalled preparation for the hearing.

[9]The same reasoning still stands.

[10]             The plaintiff’s claim is a relatively straightforward claim alleging professional negligence on the part of the defendant Mr Nguy, a solicitor. The plaintiff alleges Mr Nguy failed to properly advise the plaintiff company of the requirements of the Overseas Investment Commission. It claims its consequential loss, namely wasted costs and the fine imposed for breach of the relevant regulations. The plaintiff’s evidence will be two short briefs from directors of the plaintiff and a focused brief from Ms Pidgeon, setting out the obligations of a lawyer in these circumstances.

[11]             Mr Nguy will have personal knowledge of and should be in the position to readily respond to the allegations concerning his conduct and advice. There can be little dispute about the quantum, particularly the fine imposed for breach of the regulations. Given time Mr Nguy should be in a position to exchange evidence on the relevant issues for the defence. The time for his response can be extended to 8 October 2021, which would give him a further eight days to respond.

1      Minute of Moore J, dated 30 August 2021.

[12]             The other reasons advanced by Mr Nguy to support the adjournment are not compelling. His previous solicitors gave notice in April 2021 that they intended to cease acting as he had failed to pay their fee at the time.

[13]             The Law Society hearing has apparently been rescheduled only recently to 18 October despite the fact Mr Nguy has been aware of the fixture in this case, scheduled for 18 October 2021, for a considerable period.

[14]             While Mr Nguy’s personal medical condition may affect his ability to practise law, as noted he has personal knowledge of the matters in issue in this case and has apparently been able to deal with other counsel in relation to his Law Society matters.

[15]             Mr Nguy’s suggestion of the matter being resolved by an adjournment for a year (which is the position if an adjournment was granted) is speculative at best.

[16]             This is a case where finality and certainty are important both for the plaintiff and for other litigants before the Court.

Result

[17]For the above reasons the application for adjournment is declined.

Timetable

[18]The existing timetable is however varied as follows:

(a)the date for Mr Nguy to exchange his evidence and draft additions to the bundle is extended to Friday, 8 October 2012; and

(b)the plaintiff is now to file and serve opening submissions and trial bundle by 13 October 2021.

Costs

[19]             The respondent plaintiff is to have costs on a 2B basis for the opposition to the application and the appearance this morning.

Venning J