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…

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.

Keep reading for free

Create a free CaseChat account to read BCH Investments Ltd v Nguy and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NZHC 2360
Decision Date: 9 September 2021

CaseChat Overview and Summary

The defendant, Jesse Seang Nguy, applied for an adjournment of a trial scheduled to commence against the plaintiff, BCH Investments Limited, on 18 October 2021. The plaintiff filed a claim alleging professional negligence on the part of the defendant, a solicitor, who failed to properly advise the plaintiff company of the requirements of the Overseas Investment Commission. The plaintiff claims consequential loss, including wasted costs and a fine imposed for breach of relevant regulations. The defendant's application for adjournment was made on the basis that the plaintiff failed to comply with earlier timetable directions, the delay has caused the defendant irreversible prejudice in his defence, and an adjournment would be in the interests of justice.

The court considered the defendant's application under r 10.2 of the High Court Rules, with the overriding issue being the interest of justice. The court noted that while litigants are entitled to have their cases resolved with reasonable expedition, the public is also entitled to the efficient dispatch of justice. The court considered that the plaintiff’s claim was relatively straightforward and that the defendant should be in a position to respond to the allegations concerning his conduct and advice. The court found that the reasons advanced by the defendant to support the adjournment were not compelling and declined the application for adjournment.

The court varied the existing timetable, extending the date for the defendant to exchange his evidence and draft additions to the bundle to Friday, 8 October 2021, and requiring the plaintiff to file and serve opening submissions and trial bundle by 13 October 2021. The respondent plaintiff was to have costs on a 2B basis for the opposition to the application and the appearance that morning.

Orders