Dunstan v Genesis Energy Limited
[2024] NZHC 2051
•26 July 2024
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CIV-2024-412-24
[2024] NZHC 2051
UNDER the Contract and Commercial Law Act 2017; Consumer Guarantees Act 1993; and Fair Trading Act 1986. IN THE MATTER
of alleged breaches of the Contract and Commercial Law Act 2017; Consumer Guarantees Act 1993; and Fair Trading Act 1986.
BETWEEN
ANTHONY ROBERT DUNSTAN
Plaintiff
AND
GENESIS ENERGY LIMITED
First Defendant
FRANK ENERGY LIMITED
Second Defendant
Hearing: 19 July 2024 Appearances:
A R Dunstan – self-represented Plaintiff
C S Fleetwood-Smith and H Clarke for First and Second Defendants
Judgment:
26 July 2024
JUDGMENT OF ASSOCIATE JUDGE LESTER
DUNSTAN v GENESIS ENERGY LIMITED [2024] NZHC 2051 [26 July 2024]
[1] Anthony Dunstan, by memorandum dated 26 April 2024, sought leave “… to request that this proceeding be classified as undefended”. Mr Dunstan is representing himself. In his memorandum he referred to r 25.29(2) of the High Court Rules 2016 (the Rules). That rule, however, is part of the Rules that deal with admiralty matters, with r 25.29 applying to in personam claims where a plaintiff seeks judgment by default or by formal proof on the basis no defence has been filed.
[2] Be that as it may, in substance Mr Dunstan was seeking his claim be set down for formal proof. While Mr Dunstan’s memorandum does use the term “formal proof”, the amounts Mr Dunstan seeks judgment for in his claim are not liquidated sums, such that a default judgment would have been available.
[3] For the purposes of obtaining judgment by default, r 15.7(5) of the Rules define “Liquidated demand” as follows:
(5)For the purpose of this rule and rule 15.9, liquidated demand means a sum that—
(a)has been quantified in, or can be precisely calculated on the basis of, a contract relied on by the plaintiff; or
(ab)is quantified in, or can be precisely calculated on the basis of, or by reference to, an enactment relied on by the plaintiff; or
(b)has been determined by agreement, mediation, arbitration, or previous litigation between the same parties; or
(c)is a reasonable price for goods supplied or services rendered (when no contract quantifies the price).
[4] Mr Dunstan’s claim refers to a fine being claimed against the defendants and in another cause of action he seeks compensatory damages. Such do not fit within the definition of “Liquidated demand”.
[5] Mr Dunstan served his statement of claim by courier post. The tracking record he produces sets out that his package with the pleadings was delivered on 12 March 2024. Mr Dunstan calculates that the 25 working day period expired on Friday 19 April 2024.
[6] Service by courier post was not good service. The Rules provide that an originating document, that is the papers that commence a proceeding, must be personally served.1 McGechan on Procedure provides:2
… documents may be served on a party by post, document exchange, facsimile or email only where the relevant details for service by these methods have been specified by a party’s solicitor … Accordingly, these methods of service are not available for serving originating process on a person, unless the person has previously agreed in writing to service by these methods.
[7] I leave the invalidity of service to one side as the defendants filed a statement of defence.3 The defendants say they filed their statement of defence before 26 April 2024, that is before Mr Dunstan sought judgment by formal proof. Despite the evidence provided to Mr Dunstan, which I will detail below, he maintains that the defence was filed after his formal proof request.
[8] Because of uncertainty on the face of the Court file as to the date of filing of the statement of defence, the defendants were directed to file an application for leave to file their defence out of time. I am satisfied that application is in fact unnecessary as the defendants filed their defence in time. I now explain why I have reached that decision. The direction that an application be filed was made without hearing from counsel. I note the direction records the defence was filed on 24 April 2024.
Formal proof
[9] Formal proof is governed by r 15.9 of the Rules. Rules 15.9(1), (2) and (3) provide:
15.9 Formal proof for other claims
(1)This rule applies if, or to the extent that, the defendant does not file a statement of defence within the number of working days required by the notice of proceeding, and the plaintiff seeks judgment by default for other than a liquidated demand.
1 High Court Rules 2016, r 6.1(1)(a).
2 Robert Osborne (ed) McGechan on Procedure (Thomson Reuters, online ed) at [HR6.1.02].
3 If no defence had been filed, Mr Dunstan could not have obtained a judgment by default, at least against the first defendant, as he could not prove service as required by the Rules. As against the second defendant, service by courier was probably good service because by email the second defendant had agreed that the papers could be delivered to its address.
(2)The proceeding must be listed for formal proof and no notice is required to be given to the defendant.
(3)After a proceeding is listed for a formal proof hearing, no statement of defence may be filed without the leave of a Judge granted on the ground that there will or may be a miscarriage of justice if judgment by default is entered, and on such terms as to time or otherwise as the Judge thinks just.
…
[10] Rule 15.9(3) is clear. Leave is only required to file a statement of defence if it sought to be filed after a proceeding is listed for formal proof hearing. This means unless and until an application for formal proof has been made (and probably not until it is listed for formal proof), a statement of defence may be filed without leave.
[11] This is consistent with commentary in McGechan headed: “Breach of time limits — filing out of time not a nullity”. McGechan notes:4
Breach of the 25 working day or other time limit for filing and/or service does not in itself preclude the defendant from belatedly filing and serving a defence: Siemer v Auckland High Court (No. 3) [2013] NZHC 3540 at [15] ...
… the Court registry does not refuse to accept a statement of defence for filing after the time limit expires, unless the action has been set down for hearing. In that event, leave is required.
[12] Accordingly, we come back to the key factual issue of when the defendants filed their statement of defence. Unfortunately, that issue has been complicated by the Registry inadvertently sending to Mr Dunstan incorrect information about the date the statement of defence was filed. I can understand why Mr Dunstan initially believed the statement of defence was filed the same day as his memorandum, that is on 26 April 2024, because that is what the Registry told him. However, a review of the source material shows that advice to Mr Dunstan was incorrect. The error was explained to Mr Dunstan in a Minute of 13 June 2024 and a further Minute of 15 July 2024.
4 Robert Osborne (ed), above n 2, at [HR5.47.04].
13 June 2024 Minute
[13] On 6 May 2024, Mr Dunstan was sent a copy of the Register of Documents from the Court file which appears to be a screenshot of the Register of Documents. The Register of Documents sent on 6 May 2024, shows the statement of defence as filed on 26 April 2024. Compounding that error was an email from a Registrar advising Mr Dunstan that the statement of defence had been received on 26 April 2024.
[14] However, the Minute of 13 June 2024 advised Mr Dunstan that the statement of defence has a High Court Dunedin date stamp of 24 April 2024. In addition, the invoice issued by the Court for the filing fee in respect of the statement of defence was issued on 24 April 2024 and it also bears the High Court Dunedin date stamp of 24 April 2024.
[15] The affidavit evidence of the defendants filed in support of the application to file a statement of defence out of time is that the statement of defence was filed on 24 April 2024.
[16] The 13 June 2024 Minute set out the above matters, provided Mr Dunstan with copies of the Court documents referred to and with extracts from McGechan as to the significance of the defence being filed on 24 April 2024.
[17] Notwithstanding that material, Mr Dunstan at a subsequent telephone conference advised he maintained his position that the defence was filed on 26 April 2024. In material Mr Dunstan filed on 12 July 2024 for the hearing on 19 July 2024, he continued to rely on the High Court Register of Documents. Mr Dunstan also relied on an email from the Registry dated 26 April 2024 advising him that the statement of defence was received on 26 April 2024 and, a further email Mr Dunstan received on 24 April 2024 at 9:57am from the Registry which advised him that a defence had not been filed.
[18] As to this last email, it was correct as at 9:57am on 24 April 2024 that no defence had been filed. However, as detailed below, the defence was filed at 4:36pm that day.
[19] In the interests of getting to the bottom of the discrepancy in information provided to Mr Dunstan, I asked the Civil Caseflow Manager, Christchurch High Court, to identify the original “File and Pay” lodgement of the defence.
15 July 2024 Minute
[20] The Civil Caseflow Manager, High Court Christchurch, provided an email to the parties on the morning of 15 July 2024 and copied it to me with the outcome of her investigation. The Registrar provided a copy of the “File and Pay” record for the statement of defence. That record shows that the defence was filed 24 April 2024 at 4:36pm.
[21]That report confirms:
The correct date of filing of the statement of defence is 24 April 2024, please see the attached supporting evidence which includes the File and Pay receipt and a copy of the statement of defence on file which is date stamped 24 April 2024 (provide[d] to you earlier) . The File and Pay record is the source record which confirms the date of filing was 24 June 2024.
I understand that Mr Dunstan was incorrectly advised by the case officer that the date of filing was 26 April 2024. This unfortunately occurred because the 26th was the date the statement of defence was processed and entered into the electronic register of documents, the date was not updated to the 24th as it should have been when it was entered. After looking at the evidence, the correct position is that the statement of defence was filed with the court on the 24th of April.
[22] My Minute of 15 July 2024 advised Mr Dunstan that the best evidence of when the defence was filed is the first-hand information represented by the original “File and Pay” record which is consistent with the sworn evidence on behalf of the defendants.
[23] Mr Dunstan, in maintaining the defence was filed on 26 April 2024, is dependent on what is strictly speaking hearsay that is, the documentary hearsay represented by the Court Register and the Registrar’s email. That is not to say Mr Dunstan can be criticised for relying on that material in the first instance but when the error in the Court Record was pointed out to Mr Dunstan and particularly, when the original File and Pay record was provided to him, Mr Dunstan should have
accepted there was no proper factual basis for him to maintain that the defence was filed on 26 April 2024.
[24] I also note the statement of defence was served on Mr Dunstan by email on 24 April 2024 just after 5:00pm, which advised the defence had been filed that day. While service after 5:00pm is deemed to be service on the next working day (6.6(3) of the Rules), the trigger to apply for formal proof is that the defence is not filed (r 15.9(1) of the Rules). The advice in the service email that the defence had been filed that day is consistent with the other evidence to that effect.
[25] Again, there can be no criticism of Mr Dunstan seeking, what amounted to formal proof, and initially maintaining that the defence was filed on 26 April 2024 when that is what the Court told him. But at the risk of repetition, when it was clear beyond doubt that Mr Dunstan’s position was based on incorrect advice, he should have recognised the inevitable and accepted that the defence had been filed essentially “just in time”.
[26] At the hearing on 19 July 2024, the focus of Mr Dunstan’s submissions shifted from the date of filing. Mr Dunstan described the date of filing as a moot point as he submitted that in any event, an application for leave was required. Mr Dunstan developed this point in his written submissions where he said:
21.Clearly, in this case, the defendants were required to seek leave of the Court “to file a statement of defence out of time” given:
21.1Justice Dunningham directed the defendants do so in her 26 April 2024 Minute; and
21.2HCR 7.7(1) states that “No statement of defence … may be filed … without the leave of a Judge”.
[27]Rule 7.7(1) of the Rules provides:
7.7 Steps after close of pleadings date restricted
(1)No statement of defence or amended pleading or affidavit may be filed, and no interlocutory application may be made or step taken, after the close of pleadings date without the leave of a Judge.
[28] I am satisfied that r 7.7 of the Rules has no application in these circumstances. No close of pleadings date has been set in this case. Dunningham J’s direction in respect of the filing of an application for leave was not the setting of a close of pleadings date. McGechan provides:5
The close of pleadings date has a clear purpose. It is to ensure that the pleadings have been completed and all interlocutory matters have been completed, so that the parties can concentrate on preparing for the hearing: drafting evidence and delivering it, preparing chronologies and preparing lists of documents for the common bundle.
[29] A close of pleadings date can be set in two ways. Rules 7.6(4) and 7.6(4A) provide a Judge must fix a close of pleadings date when making directions for trial, and, if one is not fixed, the close of pleadings date is the later of the date that is 60 working days before the hearing or trial date and the date on which the hearing or trial date is allocated.
[30] No close of pleadings date has been fixed in accordance with r 7.6(4) and the default rule has no application, as no hearing date has been set. The requirement to file a statement of defence within 25 working days of service (r 5.47 and Form G1) is not the setting of a close of pleadings date, otherwise leave would be required in all instances of a defence being filed outside the time specified in the notice of proceeding. That is not the case.
[31] Accordingly, I find that the statement of defence was filed on 24 April 2024. That is before Mr Dunstan’s request for formal proof, filed on 26 April 2024. Mr Dunstan’s request that his claim be set down for formal proof must be dismissed given the defence was filed before his request.
[32] Accordingly, it is not necessary for me to make a finding in respect of the application for leave to file the defence out of time. Such would only have to be dealt with if the defence was filed after the request that the matter be referred to formal proof.
5 Robert Osborne (ed), above n 2, at [HR7.7.01].
Costs
[33] Costs are reserved. The defendants may file costs memoranda of not more than five pages, within 10 working days. However, if costs are sought, such should reflect that at least the initial need for the application was prompted by the errors within the Court Registry which I have identified.
Associate Judge Lester
Solicitors:
Russell McVeagh, Auckland (for Defendants)
Copy to:
Mr A Dunstan – self-represented Plaintiff
NOTICE REQUIREMENT
The solicitors on the record for the parties are promptly to provide a copy of this Minute to their clients (r 5.43) of the High Court Rules 2016.
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