Erickson v Beromi Limited t/a Olive Press

[2013] NZHC 748

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-6703 [2013] NZHC 748

BETWEEN  ANAND JOHN ERICKSON Plaintiff

ANDBEROMI LIMITED TRADING AS OLIVE PRESS

First Defendant

ANDBELINDA CHERIE CHILWELL AND MICHAEL STEPHEN WILLIAMSON Second Defendants

ANDTOURISM PROPERTY BROKERS LIMITED

Third Defendant

ANDKATE GROOBY Fourth Defendant

Hearing:         On the papers

Counsel:         P G Revell for Plaintiff

First and Second Defendants self-represented
F W Rose for Third and Fourth Defendants

Judgment:      12 April 2013

JUDGMENT OF ASSOCIATE JUDGE R M BELL

This judgment was delivered by me on  12 April 2013 at 4:30pm

pursuant to Rule 11.5 of the High Court Rules.

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Registrar/Deputy Registrar

Solicitors:
Corban Revell (P G Revell) P O Box 21180 Henderson, Waitakere 0650 for Plaintiff

Email:   [email protected]

Keegan Alexander (Francis Rose) P O Box 999 Auckland 1140 for 3rd and 4th Defendants

Email:   [email protected]

Copy for:

M S Williamson, 10C Ropiha Street, Fitzroy, New Plymouth 4312 for 1st and 2nd Defendants (posted) Susan Parker:  [email protected]

ERICKSON V BEROMI LIMITED TRADING AS OLIVE PRESS HC AK CIV-2012-404-6703 [12 April 2013]

[1]      The  plaintiff  applies  for  the  proceeding  against  the  first  and  second defendants to be transferred from the District Court to this court.  The plaintiff had initially started this proceeding in the District Court at Auckland under CIV-2012-

004-1597.

[2]      The plaintiff sues the first and second defendants as vendors of a business it bought, and the third and fourth defendants as land agents who acted for the vendors on the sale.  The third and fourth defendants had the proceeding against them moved to this court under s 43(1) of the District Courts Act.   I held that the proceeding against the first and second defendants remained in the District Court.  The plaintiff now applies for the proceeding against the first and second defendants to be heard in this court as well.

[3]      The plaintiff ’s claim is for less than $200,000.  The plaintiff accepts that as a claim for less than $200,000, there is nothing particularly unusual about the claim against any of the defendants on account of complexity, general public importance, amounts in issue, likely length of hearing, or the parties’ financial resources. However, the plaintiff says that the unilateral transfer by the third and fourth defendants means that the proceeding against the first and second defendants must also be moved to this court.

[4]      The plaintiff points out that there are common issues of fact and law between the plaintiff and the first and second defendants on the one hand, and between the plaintiff and the third and fourth defendants on the other.  It is undesirable that the resources of the District Court and the High Court be taken up with two separate trials involving the same matrix of facts and no doubt similar witnesses, with the risk of inconsistent judgments and different rights of appeal.   The third and fourth defendants chime in by saying that if the proceeding against the first and second defendants is not moved to this court, they would have them joined as third parties in any event.

[5]      In opposition, the second defendants, who live in New Plymouth, say that they are at a disadvantage because they are unable to afford proper representation. While that places them at a disadvantage if the proceeding is heard in the District Court, they consider that they will be at an even greater disadvantage trying to represent themselves in the High Court.  They note that the plaintiff properly began the proceeding in the District Court and the proceeding should stay there.  They also explain that while they understand that the first defendant can only be represented by a lawyer, they do not have the funds to arrange representation.

[6]      I am sympathetic to the submissions made by the first and second defendants. While no doubt they resent being sued, they have accepted, realistically, that the proceeding against them could conveniently be heard in the District Court.   They are not to be criticised for wanting to keep the proceeding in the District Court.

[7]      However, in my judgment the factors raised by the plaintiff and the third and fourth defendants outweigh the matters raised by the first and second defendants. I accept that the plaintiff’s claims against the first and second defendants on the one hand, and against the third and fourth defendants on the other hand are so connected that it would be most undesirable for them to be heard separately.   There will be overall savings for both the parties and the courts if there is only one hearing in one court involving all parties.  The submission by the third and fourth defendants that they would join the first and second defendants as third parties means that the first and second defendants will be involved in the High Court proceeding in any event. Accordingly, while I appreciate that moving this proceeding into the District Court will cause some hardship to the first and second defendants, the court really has no option but to order the transfer of the District Court proceeding against them to this court.

[8]      I order the transfer, but subject to certain conditions.

[9]      As the first and second defendants did not seek a transfer to this court, any order for costs against them should be made only on the District Court scale  – r 14.13  of  the  High  Court  Rules.    On  the  other  hand,  as  the  third  and  fourth

defendants sought the jurisdiction of this court, any orders for costs against them will be made on the High Court scale.

[10]     Once the District Court file has been transferred to this court, I direct the Registrar to arrange a telephone conference for further case management directions to be given.

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Associate Judge R M Bell