Clode v Sullivan - [2016] NZHC 529

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-2717 [2016] NZHC 529

BETWEEN
BRENT DOUGLAS CLODE

First Plaintiff

AND

SYNERGY MANAGEMENT LIMITED Second Plaintiff

AND

MICHAEL GRANT SULLIVAN AND DUTHCO TRUSTEES (SULLIVAN) LIMITED AS TRUSTEES OF THE SULLIVAN FAMILY TRUST NO 1

First Defendants

AND

DAVID ROBERTS JANS Second Defendant

AND

THOMPSON PARK TRUST LIMITED AS TRUSTEE OF THE THOMPSON PARK TRUST

Third Defendant

Hearing: 23 March 2016

Counsel:

B Clode, First Plaintiff, in person
M Pascariu and J M Embling for First and Third Defendants
P Finnigan for Second Defendant

Judgment:

24 March 2016

JUDGMENT OF PALMER J

This judgment was delivered by me on 24 March 2016 at 10.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:
MinterEllisonRuddWatts: M Piscariu
Duthie Whyte Solicitors: N Harrison

Date……………

CLODE & ANOR v SULLIVAN FAMILY TRUST NO 1 & ORS [2016] NZHC 529 [24 March 2016]

Summary

[1] Mr Brent Clode, the first plaintiff, seeks leave to amend his Statement of Claim. The first and third defendants oppose leave. I consider that allowing the amendment is in the interests of justice and will not significantly prejudice the defendants or cause significant delay. I grant leave for the plaintiffs to file an Amended Statement of Claim by a strict deadline of 5 pm Wednesday 30 March
2016. I vary the timetable for the defendants’ evidence to be served by 5 pm

Sunday 3 April 2016 and filed by 9 am Monday 4 April 2016.

The Parties

[2] Mr Clode appeared, in this hearing, as a litigant in person. He assured the court that he would have counsel representing him at the trial of this matter which is to begin on Monday 4 April 2016. He requested leave to represent the second plaintiff - which is a company, for the purposes of this application. He advised that there is no difference in the interests of the first and second plaintiffs. Other counsel did not object, for that purpose. I granted the leave requested.

[3] Mr Finnigan, for the second defendant, noted that his client’s interest in this application related only to part of the third cause of action and the whole of the fourth cause of action against his client. In response, Mr Clode indicated that he is now proposing to discontinue the proceedings against Mr Jans. In view of that, I excused Mr Finnigan from appearance for the rest of the hearing.

The Proceedings

[4] The substantive case concerns a property development at 8 Thompson Park Rd, Mt Wellington, Auckland. The plaintiffs and the first defendants entered into a Settlement Agreement (the Agreement) dated 3 July 2014 which had the trustees paying Mr Clode $450,000 in two payments and Mr Clode buying Unit 80 in the development, either for no cost or for $505,000. The third defendant owns the property and the second defendant, another property developer involved in the development, is a shareholder and director of a related company.

[5] In September 2014 the second…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clode v Sullivan

Details

AGLC: Clode v Sullivan [2016] NZHC 529
Case: [2016] NZHC 529
Decision Date: 24 March 2016

CaseChat Overview and Summary

Clode v Sullivan is a legal proceeding in the High Court of New Zealand, Auckland Registry, where Brent Douglas Clode and Synergy Management Limited, the plaintiffs, are seeking amendments to their Statement of Claim against Michael Grant Sullivan, Duthco Trustees, David Roberts Jans, and Thompson Park Trust Limited. The substantive dispute revolves around a property development project at 8 Thompson Park Rd, Mt Wellington, Auckland, and a Settlement Agreement dated 3 July 2014. The plaintiffs seek payments from the first and third defendants, damages from the second defendant for breach of contract, and a transfer of shares from the second defendant to Mr. Clode.

The primary legal issue before the court was whether the plaintiffs should be granted leave to amend their Statement of Claim after the close of the pleadings date. The plaintiffs sought to simplify their pleadings, respond to previous observations by the court, remove the intellectual property claim, add a new cause of action for rectification of the Agreement, and discontinue the claims against the second defendant. The defendants opposed the amendments, arguing that the new cause of action for rectification would likely be dismissed and that the amendment would prejudice them by requiring them to amend their pleadings and evidence in a very limited time period.

The court considered the merits of the proposed amended pleading, the potential for irreparable damage to the applicant if the amendment were not allowed, the timing of the application and the reasons for the delay, and the impact on case management and the timetable to trial. The court concluded that granting leave for the amendment was in the interests of justice and would not significantly prejudice the defendants or cause significant delay. The court also extended the time for the defendants to serve and file their Amended Statement of Defence and evidence to accommodate the amendment. The leave was granted conditional on the plaintiffs filing and serving the Amended Statement of Claim by a strict deadline of 5 pm on Wednesday 30 March 2016.

Orders