Blackmount Forests Limited v Trinity Foundation (Services no 2) Limited
[2013] NZHC 2311
•5 September 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2004-404-4037
[2013] NZHC 2311
BETWEEN BLACKMOUNT FORSTS LIMITED
First Plaintiff
BRUNEL PEAK FORESTS LIMITED & ORS
Second Plaintiffs
AND
TRINITY FOUNDATION (SERVICES NO 2) LIMITED
First Defendant
PGG WRIGHTSON LIMITED
| Hearing: | 5 September 2013 (by audio-visual link) |
Counsel: | B R Latimour for Plaintiffs R B Stewart QC and Goodall for First Defendant |
Judgment: | 5 September 2013 |
(ORAL) JUDGMENT (NO. 3) OF HEATH J
Solicitors:
Bell Gully, Auckland Jones Fee, Auckland Bradbury Muir, Auckland Counsel:
J Miles QC, Auckland
R B Stewart QC, Auckland D McLellan QC, Auckland
BLACKMOUNT FORSTS LIMITED v TRINITY FOUNDATION (SERVICES NO 2) LIMITED [2013] NZHC
2311 [5 September 2013]
[1] Blackmount Forests Ltd and other plaintiffs apply to adjourn the trial of this proceeding. The trial was set down on 22 August 2012 to begin on 16 September 2013. The grounds for the application relate to the availability of counsel. It is submitted that senior counsel, Mr Miles QC, became unexpectedly unavailable as a result of an adjournment of another hearing by Brown J, on 30 August 2013.[1] It also appears that junior counsel who has had carriage of much of the preparation for the hearing, Ms Grant, has had her instructions terminated for an undisclosed reason.
[1] Tasman Insulation New Zealand Ltd v Knauf Insulation Ltd & Ors [2013] NZHC 2239.
[2] The application is opposed by both Trinity Foundation Services No 2 Ltd and PGG Wrightson Ltd, the two defendants.
[3] I have heard from counsel for all parties this afternoon. I do not propose to rehearse everything that has been said but rather to explain my reasons for concluding that a short adjournment is appropriate so that the trial commences on Monday 23 September 2013 with three weeks remaining allocated.
[4] The first point is that the events in issue in this proceeding occurred as long ago as 1997. The proceeding was issued in 2004. Limitation defences are raised.
[5] Following a strike-out application, which was initially heard by an Associate Judge and then by a Judge on review and the Court of Appeal, the proceeding was set down for trial. Originally a fixture was offered in 2006 but an adjournment of that was sought by the Blackmount interests.
[6] In August 2012, the current fixture was allocated. The Statement of Claim is now in its eighth iteration.
[7] The hearing, if adjourned fully, could not recommence until late May or June at the earliest 2014. Certainly, if I were to remain the assigned Judge it could not commence until August 2014 at the earliest because of my involvement in a lengthy trial earlier in the year. There would be prejudice to both defendants if an adjournment were granted for a significant period of time. The claim is for
$24 million. Significant efforts have gone into preparation in recent times.
Although the amount cannot be accurately quantified at this stage, any adjournment of length would be likely to result in a condition for payment of a significant sum of wasted costs.
[8] In relation to the unavailability of senior counsel, the problem arises out of an application made by Tasman Insulation New Zealand v Knauf Insulation Ltd, a case under the Trade Marks Act 2002, over which Brown J is to preside. That trial was due to begin on 2 September 2013.
[9] As a result of a judgment given on 30 August 2013, following a hearing the previous day, a postponement of one week was allowed to enable the trial to begin on 9 September 2013. Mr Miles QC, is instructed as counsel for the plaintiff in that proceeding. It had always been understood that Mr Miles would not be available as senior counsel for the Blackmount interests during the first week of this trial due to the other proceeding running into a third week at that time. Mr Miles’ difficulties arise from the fact that he would now be unavailable for two of the three allocated weeks in this case.
[10] Mr Latimour, who has been instructed at short notice to appear on behalf of the Blackmount interests to seek an adjournment today, made inquiries of Mr Miles in relation to matters arising out of the judgment of Brown J which was circulated to counsel earlier. Mr Miles has informed Mr Latimour that the possibility of a postponement of the Tasman Insulation trial for one week was mentioned at the end of the adjournment hearing before Brown J, but not to the best of his recollection in the course of the main argument. Mr Miles also informs Mr Latimour that it did not occur to him at the time that point was raised at the conclusion of that hearing, that the postponement of the Tasman Insulation trial for one week would cause a problem in relation to the present proceeding. For that reason, it was not mentioned to Brown J.
[11] The problem involving senior counsel can be remedied by postponing the start of the present trial for one week. That will mean that Mr Miles is unavailable for the first week of the trial, that is something that would have occurred in any event. If there continue to be difficulties in retaining Mr Miles, that is something
with which the Blackmount interests will need to deal. However, the proceeding will commence on 23 September 2013.
[12] I mention briefly the position of Ms Grant as junior counsel. The situation in respect of her involvement is somewhat delphically discussed in Mr Barclay’s affidavit. He is the solicitor for the Blackmount interests. He states “there was an unrelated breakdown of the professional partnership between the plaintiffs and Ms Sandra Grant which resulted in the termination of her retainer on 30 August. In the absence of any further explanation, it is the Blackmount interests who must bear the consequences of termination of Ms Grant’s instructions. Someone else will need to be retained as junior counsel for the trial. In those circumstances, prejudice to the two defendants should override the Blackmount interests’ situation.
[13] As all counsel accept the touchstone on an application for an adjournment is the interests of all parties. Balancing those interests and the need to ensure that litigants awaiting trial are not prejudiced by delays in proceedings scheduled to begin in the near future, I have concluded that the substantial delays to Wrightsons and Trinity if the trial were adjourned completely, outweigh the interests of the Blackmount plaintiffs.
[14] In those circumstances, the adjournment application is granted to the limited extent that the trial will commence at 10am on 23 September 2013. I am aware that this delay may cause difficulties to Wrightson in the last week of the trial because Mr Ring QC, who will be leading, is unavailable for much of that week and would be responsible for closing. Should a difficulty of that type arise the evidence will be completed and further time will be found later this year to enable closing submissions to be made.
[15] The Blackmount interests have been given an indulgence in delaying the start of the trial. The costs of and incidental to the present application for an adjournment should be met by the Blackmount interests. Costs are awarded in favour of both Trinity and Wrightson on a 2B basis together with reasonable disbursements in respect of preparation for and appearances at today’s hearing. I certify for second counsel in each case.
P R Heath J
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