Codylan Farms Limited v Northern Farm Services Limited

[2015] NZHC 420

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CIV-2013-043-262 [2015] NZHC 420

IN THE MATTER

of a claim for breach of contract and breach of common law duty of care

BETWEEN

CODYLAN FARMS LIMITED First Plaintiff

VERO INSURANCE NEW ZEALAND LIMITED

Second Plaintiff

AND

NORTHERN FARM SERVICES LIMITED

Defendant

Hearing:	On the papers
Counsel:	A W M Britton for First and Second Plaintiffs P J Napier and N J Pye for Defendant
Judgment:	10 March 2015

JUDGMENT OF PETERS J [APPLICATION TO ADDUCE FURTHER EVIDENCE]

This judgment was delivered by Justice Peters on 10 March 2015 at 3 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           C & M Legal, New Plymouth

Keegan Alexander, Auckland

CODYLAN FARMS LTD v NORTHERN FARM SERVICES LTD [2015] NZHC 420 [10 March 2015]

[1]      I heard the evidence and final submissions in this proceeding between 16 and

20 February 2015.  I have since received an application by the Second Plaintiff (“Vero”) dated 24 February 2015 (“application”) for permission to adduce further evidence and for orders in respect of particular documents in the common bundle. The Defendant (“NFS”) opposes the application.  The parties have agreed that I may determine the application on the papers.

[2]      The proceedings concern the liability of NFS, if any, for costs associated with repairing damage to a water bore, situated on the land of the First Plaintiff (“CFL”). It was alleged in the statement of claim that Vero had indemnified CFL in respect of

$32,332.94 of those costs, for which Vero sought recompense from NFS.

[3]      In response, NFS’s pleading was that it had insufficient knowledge of the matters alleged and that it denied the allegation accordingly.  In short, Vero was put to proof on this part of the claim.

[4]      The common bundle included documents which, on  the face of it,  were relevant to Vero’s case.  They were not, however, referred to until counsel for the Plaintiffs gave his closing submissions, during which he referred to what he said was the relevant insurance policy.

[5]      Counsel  for  NFS  objected to  me  reading the  policy.    Counsel  for  NFS submitted that the policy had not been referred to previously and so it could not be received in evidence (see r 9.5(5), High Court Rules).

[6]      The following week Vero filed the application, seeking orders that:1

a.   the further evidence of Jonathan Gary Gallagher as contained [in an affidavit annexed to the application] … is admissible and proved; and

b.   all insurance-related documents in the Common Bundle can be taken into account by the Court in determining judgment.

1      Second Plaintiff ’s Interlocutory Application to Adduce Further Evidence, dated 24 February

2015 at [1].

[7]      In  his  affidavit,  sworn  24  February  2015,  Mr Gallagher  says  that  he  is employed by Vero as a Quality Assurance Manager, and he gives evidence relevant to Vero’s claim.

Admissibility of Mr Gallagher’s evidence, and by way of affidavit

[8]      The application to admit Mr Gallagher’s evidence requires consideration of s 98  Evidence Act  2006  (“Act”)  and  r 9.52,  High  Court Rules.   The former is concerned with a party adducing evidence after they have closed their case and the latter with evidence by way of affidavit.

[9]      Section 98 of the Act provides:

98       Further evidence after closure of case

(1)      In  any  proceeding,  a  party  may  not  offer  further  evidence  after

closing that party’s case, except with the permission of the Judge.

(2)      In a civil proceeding, the Judge may not grant permission under subsection (1) if any unfairness caused to any other party by the granting of permission cannot be remedied by an adjournment or an award of costs, or both.

…

(5)      The Judge may grant permission under subsection (1),—

…

(b)       in  any  other  proceeding,  at  any  time  until  judgment  is delivered.

[10]     Accordingly, Vero may not offer further evidence without the permission of the Court and the Court may not give permission if any unfairness caused, in this case to NFS, cannot be remedied by an adjournment or an award of costs.2    There is no question of an adjournment, because I have already heard the case.

[11]     NFS submits that it would be unfair to allow Mr Gallagher to give evidence, let alone by affidavit.  Counsel for NFS would wish to cross examine Mr Gallagher

and he would be entitled to do so.

2      Lindsay v Noble Investments Ltd [2014] NZHC 799 at [125].

[12]     Vero’s case was long closed by the time the issue arose.  The evidence could have been called in the course of Vero’s case.   If I were to give permission under s 98, I would need to reconvene the trial, take the evidence (I would not admit it by way of affidavit), hear any evidence that NFS might wish to call, and then hear any submissions regarding the insurance issues that counsel might wish to make.  That would be unfair to NFS and the unfairness could not be remedied by an award of costs.

[13]     I decline the order sought in (a) of the application for these reasons.

[14]     Given the decision I have reached it is unnecessary for me to refer to the provisions in the High Court Rules as to the admission of evidence by way of affidavit – as to which, however, see rr 9.51 and 9.52.

Insurance related documents in the common bundle

[15]     Vero also seeks an order that all insurance related documents in the Common Bundle  be  taken  into  account  by  the  Court  in  determining  the  issues  in  the proceeding.

[16]     The consequences of including a document in the Common Bundle are set out in Rule 9.5 of the High Court Rules. The relevant sub-rules provide:

9.5      Consequences of incorporating document in common bundle

…

(4)       A document in the common bundle is automatically received into evidence (subject to the resolution of any objection to admissibility) when a witness refers to it in evidence or when counsel refers to it in submissions (made otherwise than in a closing address).

(5)       A document in the common bundle may not be received in evidence except under subclause (4).

(6)       The court may direct that this rule or any part of it is not to apply to a particular document.

[17]     Vero relies on r 9.5(6).

[18]     I do not propose to make the order sought in (b) of the application.  To do so would give rise to unfairness of the nature I have mentioned.  As counsel for NFS submits, this is not a case of inadvertence in respect of a particular document.  With respect, this whole part of the case appears to have been overlooked.  It would also be pointless to make the order sought, given the decision I have reached as to Mr Gallagher’s evidence.

[19]     I dismiss the application.   It will be for Vero to pay NFS’s costs on this

application.

..................................................................

M Peters J