Cassels v Tobeck

[2022] NZHC 80

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2019-409-700

[2022] NZHC 80

BETWEEN

IAN BRACKEN CASSELS

First Plaintiff

AND

THE WELLINGTON COMPANY LIMITED

Second Plaintiff

AND

CONQUEROR NEW ZEALAND LIMITED

Third Plaintiff

AND

TELTOWER LIMITED

Fourth Plaintiff

AND

PIRM LIMITED

Fifth Plaintiff

AND

WAYNE COLIN TOBECK

First Defendant

continued

Hearing:

(Determined on the papers)

Counsel:

M Wolff for Plaintiffs

P J Shamy, D R Weatherley and I G Hunt for First to Fifth Defendants

Judgment:

3 February 2022

JUDGMENT OF ASSOCIATE JUDGE LESTER

CASSELS v TOBECK [2022] NZHC 80 [3 February 2022]

AND

SIMON GRANT ROLLO

Second Defendant

AND

ORTEGO LIMITED

Third Defendant

AND

CORE CIVIL SOLUTIONS NZ LIMITED

Fourth Defendant

AND

MORATH NZ LIMITED

Fifth Defendant

[1]    Mr Weatherly of Young Hunter, Christchurch, counsel for the defendants, applies for an order declaring that he has ceased to be solicitor on the record for the first to fifth defendants.

[2]    A complicating factor in respect of the application is that the first defendant died in August 2021. No administrator for the first defendant’s estate has been appointed.

[3]    The  second  defendant,   Mr   Rollo,   helpfully  filed   a   memorandum   on 6 December 2021 for himself and the third  defendant, of  which he  is  a director.  Mr Rollo advised that the late Mr Tobeck was the sole director of the fourth and fifth defendant companies and that no new director had been appointed to those companies. A search of the companies confirms that remains the case.

[4]    The application in respect of the second and third defendants is relatively straightforward.

[5]    I  make  an  order  under  r 5.41(1)  of  the  High  Court  Rules  2016  that  Mr Weatherley of Young Hunter, Christchurch has ceased to be the solicitor on the record for the second and third defendants. The address for service of the second and third defendants will therefore be determined by r 5.42. The order will take effect upon completion of the requirements set out in r 5.41(3) and para [7] below.

[6]    The situation with the remaining defendants is less straightforward. Rule 5.41(5) provides that, unless the Court directs otherwise, notice of every application to cease to act must be served on the party for whom the solicitor acted.

[7]    I note the applicant needs to satisfy this requirement in respect of the second and third defendants. A memorandum from Mr Weatherley confirming service of this application on Mr Rollo will be sufficient to meet this requirement and should be filed before the order is sealed.

[8]    Service of the late Mr Tobeck and the fourth and fifth defendants is not possible at the moment. Until an administrator is appointed to Mr Tobeck’s estate, there is no ability to make a new parties order. Unless service is dispensed with, Mr Weatherley will remain solicitor on the record and be the address for service, with no ability to get instructions.

[9]    The application is to be served at the registered office of the fourth and fifth defendant  companies at  their registered office and a copy is to be sent to the late  Mr Tobeck’s spouse. Such will suffice for service under r 5.41(5). I note First Light Endeavour Trust Limited is a shareholder of the fifth defendant and the application is to be provided to that company as well. Service is to be accompanied by a notice explaining the effect of r 5.42 as required by r 5.41(2).

[10]   Accordingly, I make an order under r 5.41(1) of the High Court Rules 2016, that Mr Weatherley of Young Hunter, Christchurch is no longer solicitor on the record for the first, fourth and fifth defendants. Prior to that order being sealed, for the purposes of r 5.41(3), Mr Weatherley is to file a memorandum confirming he has served the application as specified in para [9] above.

Associate Judge Lester

Solicitors:

Morrison Kent, Wellington and Auckland (for Plaintiffs) Young Hunter, Christchurch (for First to Fifth Defendants)

Copy to counsel: P J Shamy, Barrister, Christchurch (for First to Fifth Defendants)

Mr S G Rollo, (Second Defendant and Director of Third Defendant)