Beech v Patterson & Patterson Limited t/a MTF Cambridge
[2019] NZHC 1466
•26 June 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV 2019-419-0046
[2019] NZHC 1466
BETWEEN ANTHONY NGARANGI DANELL BEECH
AppellantAND
PATTERSON & PATTERSON LIMITED (t/a MTF CAMBRIDGE)
Respondent
Hearing: 24 June 2019 Appearances:
P V Cornegé for the appellant A O’Connor for the respondent
Judgment:
26 June 2019
JUDGMENT OF JAGOSE J
This judgment is delivered by me on 26 June 2019 at 3.00 pm pursuant to r 11.5 of the High Court Rules.
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Registrar / Deputy Registrar
Counsel/Solicitors:
P V Cornegé, Barrister, Hamilton Iorns & Co, Wellington
BEECH v PATTERSON & PATTERSON LTD [2019] NZHC 1466 [26 June 2019]
[1] The appellant, Mr Beech, appeals against the decision of Judge A S Menzies in the District Court at Hamilton on 17 January 2019, granting the relief sought by the respondent, MTF Cambridge, as admitted by Mr Beech.1 (Execution was stayed for 28 days to permit Mr Beech to raise any claim as may affect the judgment. None was.)
[2] Judge Menzies earlier dismissed MTF Cambridge’s summary judgment application to the same ends, because it could not establish Mr Beech had no defence.2 Although his statement of defence made no mention of them, Mr Beech’s notice of opposition additionally asserted frustration, contractual mistake and estoppel. The Judge referred to the defence being “framed as contractual mistake and/or estoppel”.3
[3] The Judge concluded “[t]he defendant may need to reflect on whether the defendant’s pleadings need amendment to raise the issues currently framed as defences as a set off and/or counterclaim”.4 No amendment was made. Mr Beech’s counsel, Mark Jepson, appears to have taken the view for the subsequent trial (and in written submissions on this appeal), the defence was “properly pleaded” in that the defence asserted a representation, prospectively qualifying to ground an estoppel, to which MTF Cambridge had not replied.
[4] At the subsequent trial, the Judge raised the absence of any amendment. Mr Jepson ultimately responded:
… if you’re of the view … that [estoppel] is an affirmative defence and for the defendant to raise it … as a defence that it must be pleaded, then counsel would seek an adjournment of this hearing.
MTF Cambridge’s counsel, Alwyn O’Connor, opposed adjournment on grounds the Judge already had brought prospective amendment to the defendant’s attention. Without hearing further from Mr Jepson, the Judge ruled the adjournment application was declined as “affirmative matters such as estoppel … need to be pleaded”, and “[t]he matter was fairly and squarely raised in the summary judgment decision”.5
1 Minute dated 17 January 2019.
2 Patterson & Patterson Ltd v Beech [2018] NZDC 21556 at [18].
3 At [6].
4 At [19].
5 Patterson & Patterson Ltd v Beech [2019] NZDC 642 at [16] and [17].
Legal issues
[5] Rule 5.50 of the District Court Rules 2014 (“DCR”), titled “Requirements of statement of defence”, stipulates at (4) “[a]n affirmative defence must be pleaded”. An ‘affirmative defence’ relies on material outside the admissions and denials of facts alleged in the statement of claim.6
[6] Estoppel by representation – essentially a form of ‘confession and avoidance’, or ‘yes, but’ – is a classic example of an affirmative defence.7 Mr Beech’s counsel at the appeal hearing, Philip Cornegé, did not pursue the contrary argument. For what it is worth, the defence – which admits the allegation Mr Beech bore the obligation of insurance, but asserts MTF Cambridge represented it could provide such insurance – alone is insufficient to set up the estoppel, which requires the ‘but’ to establish why the admission cannot be relied upon to establish Mr Beech’s liability.
[7]DCR 1.12(2) provides:
The court may, at any stage of a proceeding, make, either on its own initiative or on the application of a party to the proceeding, any amendments to any pleading or the procedure in the proceeding that are necessary for determining the real controversy between the parties.
and DCR 10.10 provides:
The Court may, before or at the trial, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.
These are matters for the Court’s discretion.
[8]In such cases:8
… the criteria for a successful appeal are stricter: (1) error of law or principle;
(2) taking account of irrelevant considerations; (3) failing to take account of a relevant consideration; or (4) the decision is plainly wrong.
6 Manukau Golf Club Inc v Shoye Venture Ltd [2012] NZCA 154, (2012) PRNZ 235 at [21].
7 Darlington v Pritchard (1842) 4 Man. & G 783 at 794-795, 134 ER 322 (Comm Pleas) at 326- 327.
8 Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [32] (footnote omitted).
This is in distinction from the approach on a general appeal, in which appellants “are entitled to judgment in accordance with the opinion of the appellate court”.9
Discussion
[9] Mr Cornegé says the Judge erred in his assessment of what was ‘fairly and squarely raised’ in the summary judgment decision. That was whether Mr Beech should consider raising the signalled defences “as a set off and/or counterclaim”. Mr Cornegé said the Judge thus took account of an irrelevant consideration in refusing to adjourn trial to permit amendment of the pleading to include the signalled defences.
[10] Mr Cornegé also says adjournment would only have been brief, accommodated within the half day’s trial, as the issue was identified clearly in the course of the summary judgment application, and both parties’ evidence for trial (which appears to have been conducted on affidavits) extended to the indicated defences.
[11] It is for counsel, not a judge, to ensure their clients’ cases are ready for trial. Case management only provides the framework within which such may occur; ultimately, it is for counsel to articulate and evidence such of the case as they will rely on in pursuit of or resistance to the remedy sought. Thus the Judge’s reference to his summary judgment decision was only to affirm counsel had opportunity to reflect on their cases for trial. DCR 1.12(2) is not to enable parties to amend their pleadings, but enables the court to do so, to capture the ‘real controversy’ between them.
[12] The Judge had to address the actual pleadings before him, informed by the parties’ approach to them. Although the transcript is missing what may be a crucial 15 minutes of submission after an earlier adjournment for Mr Jepson to “reflect” on the pleadings’ adequacy, the transcript resumes at a point of his insistence estoppel, not being an affirmative defence, is “pleaded correctly”.
[13] From that perspective, I take the view the Judge’s refusal was not based on any irrelevancy, but his considered response to the position as it unfolded before him. As a decision falling within his discretion, and not ‘plainly wrong’, I will not interfere.
9 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
Result
[14]The appeal is dismissed.
Costs
[15] In my preliminary view, as the successful party, MTF Cambridge is entitled to 2B costs and disbursements. That is because, from what I presently know of it, none of the steps in this averagely complex proceeding required other than a normal amount of time.
[16] If that is not accepted, and the parties otherwise are unable to agree, costs are reserved for determination on short memoranda of no more than five pages – annexing a single-page table setting out any contended allowable steps, time allocation, and daily recovery rate – to be filed and served by:
(a)MTF Cambridge within ten working days of the date of this judgment;
(b)Mr Beech within five working days of service of MTF Cambridge’s memorandum; and
(c)MTF Cambridge strictly in reply within five working days of service of Mr Beech’s memorandum.
—Jagose J
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