Fatweb Limited v Manaia One Limited

[2016] NZHC 2525

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000243 [2016] NZHC 2525

UNDER	the Companies Act 1993
BETWEEN	FATWEB LIMITED Plaintiff
AND	MANAIA ONE LIMITED Defendant

Hearing:	18 October 2016
Appearances:	G J C Carter and D J Pine for Plaintiff D J Ballantyne (given leave to withdraw) for Defendant
Judgment:	21 October 2016

JUDGMENT OF ASSOCIATE JUDGE MATTHEWS

[1]      Mr D J Ballantyne is the solicitor on the record for the defendant company, Manaia One Limited (Manaia).   He has applied by interlocutory application, supported by an affidavit from a principal in the firm for which he works, for an order declaring that he has ceased to be the solicitor on the record for Manaia.

[2]      Mr Ballantyne says that he has not received instructions to prepare for and attend a fixture on the substantive proceeding before the Court, that Manaia has failed or refused to sign a notice of change of representation or provide an alternative address for service, that his firm ceased from acting for Manaia on 19 September

2016, and that Manaia has advised that it has sought alternative  representation, though it has not given any further detail.

[3]      Evidence in support of the application is given by Mr C J Cousins, a director of Canterbury Legal, the solicitor’s firm for which Mr Ballantyne works.  He says that no instructions have been received from Manaia to prepare for or attend the

hearing on 18 October.   He says that on 19 September Mr Ballantyne wrote to

FATWEB LTD v MANAIA ONE LTD [2016] NZHC 2525 [21 October 2016]

Ms Treacy, the director of Manaia, confirming that the firm was no longer engaged, and inquiring as to arrangements which would be made for alternative representation or whether Ms Treacy intended to act for the company.   A notice of change of representation and address for service was provided to Ms Treacy to complete.

[4]      Ms Treacy did not discuss the firm’s disengagement until 6 October, when she advised she was in the process of obtaining alternative counsel, though those whom she had contacted were unwilling or unable to set time aside to prepare for the hearing on 18 October.   She indicated that she would oppose the application for leave to withdraw unless Mr Ballantyne or his firm were able to obtain an adjournment of the hearing to provide sufficient time for her to brief alternative counsel.

[5]      According to Mr Cousins, Ms Treacy said she was not able to give the firm instructions, respond in relation to their disengagement, or obtain alternative counsel as she is in a state of depression and suffers anxiety and panic attacks, which has occurred since she learnt that the plaintiff, Fatweb Limited, was taking steps to serve her with a bankruptcy notice.  Ms Treacy explained various points in relation to her medical condition, and said she had suffered two strokes in the past two months resulting in her being hospitalised.  Evidently she further explained that her son has significant health issues for which he is receiving treatment in Invercargill.   As a result  she  has  been  regularly travelling  to  Invercargill  notwithstanding  her  own medical issues to assist with his care.

[6]      Mr Cousins concludes his affidavit by advising the firm is unable to act for Manaia due to its failure to take the firm’s advice, a lack of instructions being given, and breaches of the firm’s retainer.  He does say, however, that in the circumstances it is his view that this case should be further adjourned to allow Ms Treacy to arrange representation for her company.

[7]      Prior   to   this   application   and   affidavit   being   filed   Ms   Treacy   had communicated with the Registry asking that the case be adjourned because Manaia was not represented.  This resulted in the Court issuing a Minute on 10 October and again on 13 October.  Generally, the Court will not respond to communications from

parties by email.  The High Court Rules set out a procedure by which issues to be raised by parties to litigation are to be brought before the Court.  However, on this occasion, because of the matters raised by Ms Treacy, I responded to the emails, as an exception.  In the Minute issued on 13 October, confirming the Minute issued on

10 October I indicated I was not prepared to adjourn the fixture on 18 October, though the point could be revisited at the beginning of the hearing on that date.

[8]      Ms Treacy responded to the latter Minute and produced an email from one counsel indicating he was unable to attend the court today.  Ms Treacy did not attend herself.

[9]      I am satisfied that an order should be made as sought by Mr Ballantyne.  It is plain that neither he nor any other member of the firm for which he works has any instruction to take steps in regard to this case, and has not done so for a considerable period.    It  is  also  clear  that  Manaia  is  in  breach  of  its  obligations  under  its engagement of Mr Ballantyne’s firm.  I cannot see that Mr Ballantyne would be able to contribute in any meaningful way to the Court’s task of resolving the issues raised on this proceeding.

[10]     Ms  Treacy,  in  one  of  her  emails,  indicated  that  she  opposed  an  order discharging Mr Ballantyne from his role.  That opposition, however, is deprived of any efficacy by Ms Treacy’s own lack of instruction to Mr Ballantyne and her company’s breach of the terms by which it engaged Mr Ballantyne’s firm to act.

[11]     Mr Carter had also indicated that the plaintiff opposed Mr Ballantyne being discharged from the role of solicitor on the record, but at the hearing indicated that the plaintiff would  abide the  decision  of the Court.    In  the  circumstances  it  is understandable that the plaintiff may have wished the defendant to continue to be legally  represented,  but  as  nothing  can  be  achieved  by  that  being  the  case, Mr Carter’s altered position was responsibly taken.

[12]     The effect of discharging Mr Ballantyne from his role is, of course, to leave Manaia unrepresented.  That is a position that it has brought entirely upon itself, for reasons I have set out.   It has the option of engaging other counsel and has not

successfully exercised that option in the four weeks it has had available to do so.  For now, I direct that its address for service will be at the email address of Ms Treacy, but I direct Manaia to file an amended notice of address for service giving a physical address for service of documents within three working days.

[13]     If the health issues identified by Ms Treacy in the paper she has filed with the court prevent her from taking this step or otherwise representing Manaia and protecting its interests,  she has the option of appointing another director of the company to assume these roles.

[14]     I make an order declaring Mr Ballantyne has ceased to be the solicitor on the record for the defendant.

J G Matthews

Associate Judge

Solicitors:

Wynn Williams, Christchurch

cc: Ms Treacy