Goodfellow v Brown - [2016] NZHC 984

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-805 [2016] NZHC 984

BETWEEN
THOMAS BRUCE GOODFELLOW

AND MARION ELIZABETH GOODFELLOW AS TRUSTEES OF THE BROWN FAMILY SPECIAL NEEDS TRUST

Plaintiffs

AND

NIGEL BROWN Defendant

Hearing: 16 May 2016

Appearances:

A E Hansen for Plaintiffs
M J Robinson for Defendant

Judgment:

16 May 2016

JUDGMENT OF LANG J

[on application by defendant for order granting leave to file
amended statement of defence]
This judgment was delivered by me on 16 May 2016 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

GOODFELLOW v BROWN [2016] NZHC 984 [16 May 2016]

[1] The defendant in this proceeding, Mr Nigel Brown, was formerly married to Mr and Mrs Goodfellow’s daughter Claire. Mr and Mrs Goodfellow contend that they loaned Mr Brown and Claire approximately $422,000 in order to enable them to buy a house. They now seek repayment of that sum.

[2] Claire acknowledges the monies are owing to her parents. Mr Brown does not. As a result, Mr and Mrs Goodfellow have issued this proceeding against Mr Brown seeking to recover one-half of the amount they say is owing. Mr and Mrs Goodfellow’s claim against Mr Brown has been allocated a two day fixture commencing on 30 May 2016.

[3] Mr Brown now seeks leave to amend his statement of defence to incorporate an additional defence. Leave is necessary because the close of pleadings date has passed.1

The proposed amendment

[4] The proposed amendment will allege that Mr and Mrs Goodfellow did not provide the funds that Mr Brown and Claire used to purchase their house. Rather, the funds belonged to Claire, and were paid to her in part repayment of a debt owing to her by a company called Amalgamated Dairies Limited (Amalgamated Dairies).

[5] The issue has arisen because Mr Brown has recently realised the significance of documents held by Amalgamated Dairies. Documents that Mr Brown has adduced in support of the application appear to show that the funds used to purchase the house were paid from a current account or debt facility held by Claire with Amalgamated Dairies.

Jurisdiction

[6] There is no dispute regarding the principles to be applied in determining the application. They have been enunciated in cases such as Elders Pastoral v Marr,

1 High Court Rules, r 7.7.

Body Corporate 172108 v Gundry, Shanton Apparel Ltd v Thornton Hall Manufacturing Ltd and Fordham v Xcentrix Communications Ltd.2 In short, the Court is required to be satisfied that the amendment is necessary to determine the real controversy between the parties, and that the amendment will not cause undue delay or prejudice to the other parties to the proceeding.

Grounds of opposition

[7] Mr and Mrs Goodfellow strongly oppose leave being granted. They contend Mr Brown has been guilty of egregious delay in seeking to amend his defence in this way. They point out that he has had knowledge of the documents underlying the proposed defence for a considerable…

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.

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Details

Case: [2016] NZHC 984
Decision Date: 16 May 2016

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the plaintiffs, Thomas Bruce Goodfellow and Marion Elizabeth Goodfellow as trustees of the Brown Family Special Needs Trust, brought an action against the defendant, Nigel Brown. The plaintiffs sought repayment of a loan they claimed to have provided to the defendant and his former wife, Claire. The plaintiffs asserted that they lent the defendant and Claire approximately $422,000 to purchase a house. Claire acknowledged the debt, but the defendant denied it. The plaintiffs, therefore, sought to recover half of the alleged debt from the defendant. The defendant sought leave to amend his statement of defence to include an additional defence, arguing that the funds used to purchase the house were not provided by the plaintiffs, but rather by a company called Amalgamated Dairies Limited as repayment of a debt owed to Claire.

The court considered whether the defendant's proposed amendment was necessary to determine the real controversy between the parties and whether it would cause undue delay or prejudice to the plaintiffs. The plaintiffs opposed the amendment, arguing that the defendant had been guilty of egregious delay in seeking to amend his defence. They also argued that they would be prejudiced by the late inclusion of the proposed defence, as they would need to call an additional witness from Amalgamated Dairies to give evidence. The court accepted that the defendant had been guilty of delay in raising this issue, but held that the interests of justice required him to be able to advance this defence. Although the amendment would cause some prejudice to the plaintiffs, this could be met by adjourning the trial date for a brief period to enable their witness to return from overseas.

The court granted the defendant's application to amend his statement of defence, directing that the trial be extended to three days to accommodate the new evidence. The court also awarded the plaintiffs costs on a category 2B basis together with disbursements as fixed by the Registrar. The amendment was necessary to determine the real controversy between the parties, and the prejudice to the plaintiffs could be mitigated by the adjournment of the trial date. The interests of justice required the defendant to be able to advance his defence, despite the delay in doing so.

Orders