Best Food Fresh Tofu Limited v China Taiping Insurance (NZ) Limited

[2015] NZHC 131

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003094 [2015] NZHC 131

BETWEEN

BEST FOOD FRESH TOFU LIMITED

Plaintiff

AND

CHINA TAIPING INSURANCE (NZ) LIMITED

Defendant

RADLEY CONSULTANTS LIMITED First Third Party

ASSET MANAGERS LIMITED Second Third Party

M J MURPHY LIMITED First Fourth Party

Hearing:	5 February 2015
Appearances:	Mr J Skinner for plaintiff Mr A Wakeman for defendant Mr D MacRae for first third party Mr S Connolly for second third party Ms M Russell for first fourth party
Judgment:	5 February 2015

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

BEST FOOD FRESH TOFU LIMITED v CHINA TAIPING INSURANCE (NZ) LIMITED & ORS [2015] NZHC 131 [5 February 2015]

[1]      This proceeding has a trial date of 13 April 2015 which is a little over two months distant from today’s date.   On 12 December 2014, the second third party filed an application to join nine fourth parties as additional parties in the proceeding. The third party in question was joined as long ago as April 2014.  The position of the other parties is to abide the decision of the Court except for the plaintiff which strongly opposes the making of any order adding the additional parties.  In the notice of opposition  which  counsel  for the plaintiff filed  two  grounds  were  stated  for opposing the making of any such orders;

(a)      If the orders are granted the plaintiff will be significantly prejudiced because its firm trial date will be jeopardised leading to further delay to its claim being determined;

(b)      It is in the interests of justice that the plaintiff’s claim proceeds to

trial.

[2]      Mr Skinner, counsel for the plaintiff, made submissions in support of the notice of opposition which I will make further reference to below.

[3]      Mr Connolly who appears for the first time today as counsel for the second third party was reluctant to deal with the application for consent to issue fourth party notices today on the grounds of his lack of familiarity with his brief.   However, I consider that given the imminence of the trial date it is essential that the Court comes to a prompt decision on the matter and while it would be desirable if possible to defer hearing argument on this matter to another date that simply is not going to be possible.

[4]      Mr Connolly emphasized that the claim before the Court is not a large one in comparison  to  other  High  Court  claims  and  that  there  is  a  strong  need  for  all potential contributors to be joined so that an economic resolution of the pleadings can be achieved.  He said that the second third party had not received discovery until relatively recently from the other parties.  When I enquired of other counsel there was  some  uncertainty  about  when  the  second  third  party  would  have  received

discovery with one counsel, Ms Russell, expressing the opinion that it might have been towards the end of December 2014.  Mr Connolly himself did not know that he adopted that approximate date as being applicable.

[5]      The question of when the second third party received discovery is of course relevant because frequently extant parties become aware of the possibility of joining still further parties once they review the discoverable material that is supplied to them.

[6]      The Court has however been left in something of a vacuum understanding just why the second third party having been joined, as I say, in April 2014 has left it so late to make the application that it now brings.  Mr Connolly attempted to suggest that the delays came about because of changes to the way in which the plaintiff had formulated its claim.  However on examination what appeared to have happened is that the plaintiff has abandoned parts of its earlier claim and that does not seem to be very satisfactory basis for explaining delay on the part of the second third party.  It is the absence of a clear formulation of the reasons for the lateness of this application which is a particular hurdle for the second third party to surmount in this case.  One decision which is of assistance in formulating the correct approach to applications of this kind is the decision of Miller J given in May 2010, Barber & Ors v Smith &

Ors.1     In that case the Judge was considering in May 2010 a late application for

joinder in a case which was scheduled for trial in August, that is some three months distant.   The Judge took it as being established that to order joinder would unquestionably mean a loss of the trial date and a considerable delay until a new fixture would be obtained.  The Judge noted2 that it is ordinarily most efficient to try related  claims  together,  thereby reducing  costs  overall  and  avoiding  the  risk  of inconsistent  decisions.    He  also  said  the  delay can,  to  some  modest  extent,  be compensated in costs.  He further accepted that had the application in that case been brought in a timely way it was beyond question that the Court would have allowed

the respondent to be joined as a third party.  However because of the loss of the trial

and the likely large increase in costs for other parties the Judge concluded that he

1      Barber & Ors v Smith & Ors, HC AK CIV-2008-404-7067, 26 May 2010

2 At [9].

was not satisfied in the circumstances of that case that it was in the interests of justice that joinder should be ordered.

[7]      What is not clear from the judgment to which I have just made reference is how  long  the  delay  would  have  been  until  a  fresh  trial  date  could  have  been allocated.  Because in this case I am led to believe that a replacement trial date could be allocated for 13 July 2015 there is no deficiency of information about one of the consequences of joinder.  There is no doubt that if joinder was permitted at this stage then, as with the case in Barber, the present trial date would be lost.  Service of the intended fourth party’s discovery and all the other steps that would need to be taken rule out any realistic possibility of the current trial date being held if joinder were to be permitted.

[8]      On balance though I consider that because of the relatively modest delay in the commencement of trial if a joinder order were to be made, that in the circumstances of this case justice requires the grant of the application to join the additional parties.  The trial date presently applicable is vacated and in its place a trial is scheduled for 13 July 2015.  In all other respects the current timetabling and other case management orders that are in place are to remain extant.   Once the additional  parties  have  been  served  it  will  be  necessary  to  allocate  a  case management conference to complete timetabling in relation to those parties. There is no intention I should add that the joinder of these additional parties should be spread by the other parties to the proceeding as giving the green light to a re-opening of all of the interlocutory phases in the proceeding again.  I expect though that there will be some interlocutory activity as between the second third party and the additional new parties but that is simply unavoidable.  The second third party is to complete service  of  the  fourth  party  notices  and  ancillary  documentation  not  later  than

19 February 2015.  The proceeding is to be given a case management conference at the first available date in the fourth quarter roster.  The parties are to be notified as soon as that date is to hand.

[9]      Costs on the present application are reserved.

J.P. Doogue

Associate Judge