Biggs v Biggs

[2019] NZHC 1705

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2017-425-000007

[2019] NZHC 1705

IN THE MATTER

of the Property (Relationships) Act 1976

BETWEEN

SOPHIE ANNABELLE BIGGS

Plaintiff

AND

STEPHEN TIMOTHY BIGGS

First Defendant

AND

STEPHEN TIMOTHY BIGGS as trustee for the TIM BIGGS FAMILY TRUST

Second Defendant

AND

LAGUNA BAY CAPITAL PTY LIMITED

as trustee for the LAGUNA BAY CAPITAL TRADING TRUST

Third Defendant

AND

LB MANAGEMENT PTY LIMITED as

trustee for the LAGUNA BAY CAPITAL MT TRUST

Fourth Defendant

Hearing:

18 July 2019 via telephone conference

Counsel:

E M Eggleston for the Plaintiff

M J McCartney QC for the First Defendant
J F Anderson QC for the Second, Third and Fourth Defendants

Judgment:

19 July 2019

JUDGMENT OF NATION J

[1]        A pre-trial conference was scheduled in these proceedings for 18 July 2019 after it had not been possible to resolve the proceedings at a settlement conference on 5 June 2019.

BIGGS v BIGGS [2019] NZHC 1705 [19 July 2019]

[2]        On 2 July 2019, Ms Biggs filed an application on notice for an order for transfer of the proceedings to Auckland, supported by an affidavit from Ms Biggs. On 15 July 2019, Mr Biggs filed a notice of opposition with a memorandum of counsel in support of that opposition.

[3]        On 15 July 2019, Mr Eggleston filed a memorandum for Ms Biggs advising that senior counsel for Ms Biggs, Ms Chambers QC, was on leave in Europe until 7 August 2019. He requested an adjournment of the application for transfer and directions as to the filing of submissions.

[4]        During the conference, I decided not to defer the hearing of the application. Detailed submissions had been made in opposition to the application in counsel’s memorandum. I considered I had sufficient information on which to make an appropriate decision as to whether transfer of the proceedings would be in the interests of justice.

[5]        Transfer of the proceedings for hearing in Auckland has been sought on the basis it would be less expensive for the parties, and certainly for Ms Biggs, to have the hearing in Auckland.

[6]        The thrust of Mr Biggs’ firm opposition to the transfer was what he and his counsel suggested would be the considerable value in my being able preside over the trial, given the considerable investment in time and resources that have already been applied towards ensuring I was familiar with all that has been at issue in the proceedings through having to deal with a range of interlocutory applications, particularly with regard to discovery. Counsel suggested that, if a new Judge has to preside over the trial, it will inevitably mean that counsel have to duplicate work that has been done already in ensuring that the new Judge is fully informed as to the context in which the issues at trial have arisen.

[7]        Counsel noted in particular that the earlier trial dates have now been vacated on two occasions after Mr Biggs had gone to considerable trouble and incurred significant expense in ensuring that he was ready for trial. Those trials have been vacated so that Ms Biggs could continue with further investigative or preparatory work

which it will be suggested has turned out to be of little value in resolving what is at issue between the parties. There is now a major issue as to costs arising out of those and other matters. Costs issues have been reserved. It was suggested that, with my familiarity with the background to those matters, I would be the best Judge to deal with those issues.

[8]        There is merit in the submissions made for Mr Biggs but I have not been formally assigned as the Judge to deal with the proceedings either now or through trial. I have continued to deal with matters on an interlocutory basis as a more efficient use of judicial resources. Whether or not I would be the Judge at trial, whether in Christchurch or in Auckland, is a matter still to be determined. The appointment of a Judge to preside over the trial in either Christchurch or Auckland will ultimately depend on a number of factors, as it does with the appointment of any Judge to preside over a trial.

[9]        I am satisfied that, in the particular circumstances of this case, it would be more convenient for counsel and the main witnesses who will have to appear at Court during the hearing for the hearing to be in Auckland. Both parties now reside in Australia so, wherever the trial is held, they will have the costs of travel to and from New Zealand and the costs of accommodation away from home.

[10]      All three senior counsel who will be appearing for the parties are based in Auckland. Ms Chambers QC will be appearing for Ms Biggs together with Mr Eggleston who is based in Tauranga. Ms McCartney will be appearing with Mr Lloyd of Queenstown.

[11]      There are two primary expert witnesses. Mr Lyne, for Ms Biggs, is based in Auckland. Mr Moriarty, for Mr Biggs, is based in Tauranga and Auckland. There are a number of other expert witnesses and certain other witnesses who reside in Australia. Their evidence will be given by AVL.

[12]      On the information which is available to me, it does not appear that the proceedings would likely be brought on any earlier in either Christchurch or Auckland, but with the greater number of Judges and courtrooms in Auckland, there may be more

flexibility in being able to bring these proceedings on for hearing earlier if the hearing is there.

[13]      Regardless of who ultimately is designated to preside over the trial, I can assist with the management of these proceedings through dealing with further interlocutory applications before the hearing.

[14]      Rule 10.4 High Court Rules permits the Court to order that the proceedings be tried at a place other than that in which the statement of defence had to be filed. These proceedings were transferred to the High Court at Invercargill so, in the absence of an order under r 10.1(4), these proceedings would normally have to be heard in Invercargill. Neither party suggests that would be convenient so the choice is between Christchurch and Auckland.

[15]      But for the value that might be obtained from my possibly being able to preside over the trial, I am satisfied it would be more convenient for these proceedings to be heard in Auckland. Consistent with that, the parties agreed that the recent settlement conference would take place in Auckland.

[16]      I am thus making an order that the hearing of these proceedings is to take place in Auckland. I am not going to direct now that all subsequent steps in the proceedings be taken at Auckland. The allocation of a date for the hearing in the Auckland Court can be arranged by the Christchurch registry in conjunction with the Auckland Registry and with the application of judicial resources also being considered on a national basis.

[17]      The Court is now directed to allocate a date for trial. I direct that the proceedings be given priority. That direction is sought at the request of both parties and is made having regard to the fact that two previous trial dates have already had to be vacated. There is no agreement between counsel as to precisely how long is needed. The defendants suggest that no more than two weeks would be required. Ms Chambers, for Ms Biggs, has suggested that two to three weeks is needed.

[18]      To avoid any risk of the hearing not being completed within the allocated time, I direct that the proceedings be set down for trial with three weeks to be available. My expectation would be that it should be possible for the hearings to be completed well short of three weeks.

[19]      Counsel are to provide by memorandum to the registry at Christchurch details of the times when they and witnesses would not be available for a three week hearing at Auckland during 2020.

[20]      No close of pleadings date was set by the Court at any stage these proceedings have been in the High Court. Normally when proceedings have been set down for hearing, as these have been on several occasions, there would be a bar against filing an amended statement of claim at a late stage without the leave of the Court. That impediment does not apply in this case. With the parties having now prepared all their evidence on the basis of pleadings as they previously stood, the defendants and the Court would be concerned if an amended statement of claim was to raise new issues which potentially might require further evidence or investigation and thus result in further delays and cost.

[21]      Mr Eggleston assured me that the amendments are not of that nature. They will not raise new issues. The amended statement of claim is simply to bring the pleadings in line with the evidence which is already before the Court.

[22]      If that is the case, the filing of an amended statement of claim should not cause any difficulty for the defendants or the Court.

[23]      On that basis, I direct an amended statement of claim is to be filed and served by 30 August 2019. A statement of defence to the amended statement of claim is to be filed by 20 September 2019.

[24]      Leave is reserved to the defendants to seek a telephone conference within one week of their being served with the amended statement of claim if they consider they are prejudiced in any way through the form of that amended statement of claim.

[25]      Subject to that reservation, these proceedings are adjourned for a further telephone conference on 26 September 2019 at 9.30 a.m. By then, it is to be hoped that a trial date will have been allocated for the proceedings. Counsel are to file a joint memorandum as to the directions they seek to ensure the parties are ready to proceed with the trial.

[26]      At the conclusion of the conference, Mr Eggleston said the plaintiff would be seeking costs on this application. He said the defendants had been asked to consent to it. Without their consent, the plaintiff had incurred the costs of making the application. At the very least, he asked that costs be reserved. Ms McCartney said costs should be shared.

[27]      The question of transfer did raise an issue as to the best use of Court resources. It was therefore appropriate for it to be brought before the Court and not simply determined by agreement between the parties. The plaintiff has been successful with her application in one respect but not on another in that the files are not being transferred now to the Court at Auckland. With the Court’s knowledge of the file, it was possible for me to deal with it on an informal and what should have been an economical basis for the parties. Each party is to bear their own costs in relation to this application except for any filing fee that has been paid to the Court. If there was such a cost, it is to be shared between the plaintiff and first defendant.

Solicitors:

DAT Chambers QC, Barrister, Auckland MJ McCartney QC, Barrister, Auckland JF Anderson QC, Barrister, Auckland EM Eggleston, Barrister, Tauranga

Lloyd Troon Law, Queenstown City Law, Auckland.