Hall v Teague
[2021] NZHC 3509
•16 December 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2021-404-001210
[2021] NZHC 3509
BETWEEN MAURICE HALL
Plaintiff
AND
KAREN TEAGUE
Defendant
Hearing: 16 December 2021 Appearances:
No appearance for the Plaintiff S Gloyn for the Defendant
K Parker for solicitors seeking leave to withdraw
Judgment:
16 December 2021
Reissued:
17 December 2021
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 16 December 2021 at 4.00pm and
re-delivered by me on 17 December 2021 in accordance with High Court Rules 2016, r 11.10
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Wilson McKay, Auckland Bytalus Legal, Hamilton
Copy to the plaintiff
HALL v TEAGUE [2021] NZHC 3509 [16 December 2021]
Introduction
[1] This proceeding concerns a dispute over unpaid grazing and husbandry fees in respect of horses owned by the plaintiff, Maurice Hall, and grazed at Brookby Lodge by the defendant, Karen Teague.
[2] Despite some apparent progress in July 2021 towards resolving the dispute, since October 2021, Mr Hall has failed to comply with Court orders that he either discontinue the proceeding or file a statement of claim and other documents to prosecute his claim. In the meantime, Ms Teague remains subject to an interim order not to sell Mr Hall’s horses.
[3] Ms Teague now applies for orders discharging the interim order and dismissing Mr Hall’s proceeding and costs.
[4] Wilson McKay, Mr Hall’s solicitors, also apply to withdraw as solicitors on the record.
Procedural background
[5] On 5 July 2021, Mr Hall applied without notice for an interim injunction to stop Ms Teague from selling Mr Hall’s horses. No affidavit was filed in support of the application.
[6] On 6 July 2021, Lang J made an interim order that no further horses were to be sold without further of the Court and directed that the proceeding be served on Ms Teague.1
[7] By minute dated 12 July 2021, Fitzgerald J recorded that Mr Hall and Mr Gloyn, counsel for Ms Teague, had reached an arrangement that would enable the injunction to be discharged and the proceedings discontinued, and the horses returned to Mr Hall on or before 27 July 2021.2
1 Hall v Teague HC Auckland CIV-2021-404-1210, 6 July 2021 (Minute of Lang J).
2 Hall v Teague HC Auckland CIV-2021-404-1210, 12 July 2021 (Minute of Fitzgerald J).
[8] Fitzgerald J ordered that the injunction made by Lang J be discharged upon the return of the horses to Mr Hall.3
[9] The proceeding was called in the Duty Judge List on 14 October 2021. By minute of that date, Downs J recorded that he had been informed by Mr Gloyn that Mr Hall, who did not appear at the Duty Judge List, had not paid the outstanding grazing fees or collected his horses.4
[10] Downs J directed that Mr Hall either file a notice of discontinuance or, by 27 October 2021, file and serve a statement of claim, sworn affidavit in support, signed undertaking as to damages and signed memorandum.5
[11] The proceeding was called again in the Duty List on 11 November 2021. By minute of that date, Brewer J recorded that Mr Hall, who did appear that day, had informed him that he had not received Downs J’s minute.6
[12] Brewer J adjourned the proceeding for a week and directed that Mr Hall either file and serve a notice of discontinuance or, by 18 November 2021, file and serve a statement of claim, sworn affidavit in support, signed undertaking as to damages and signed memorandum.7
[13] The proceeding was called again in the Duty List on 18 November 2021. Mr Hall was represented by Mrs Parker.
[14] In his minute of 18 November 2021, Woolford J recorded that, on 17 November 2021, the Court had received a memorandum from Mrs Parker advising that she had just been instructed by Mr Hall that day to act on his behalf and sought an opportunity to review the matter and to amend and update documents accordingly.8 Woolford J
3 Hall v Teague HC Auckland CIV-2021-404-1210, 12 July 2021 (Minute of Fitzgerald J).
4 Hall v Teague HC Auckland CIV-2021-404-1210, 14 October 2021 (Minute of Downs J).
5 At [2] – [3].
6 Hall v Teague HC Auckland CIV-2021-404-1210, 11 November 2021 (Minute of Brewer J) at [2].
7 At [3] – [4].
8 Hall v Teague HC Auckland CIV-2021-404-1210, 18 November 2021 (Minute of Woolford J) at [5].
also recorded that Mr Gloyn and Mrs Parker were optimistic that the matter could be settled.9
[15] Woolford J directed that Mr Hall file and serve any documents by 1 December 2021.10
[16] As at 9 December 2021, no documents had been filed by Mr Hall and Mr Gloyn filed a memorandum requesting that the proceeding be brought back to the Duty Judge List for review.
Applications to discharge the interim order and dismiss the proceeding and seeking leave withdraw
[17] By memorandum dated 14 December 2021, Mr Gloyn on behalf of Ms Teague, applies for the order made by Lang J to be discharged and for an order dismissing any claim for want of prosecution and costs.
[18] By memorandum dated 14 December 2021, Mrs Parker advised that she had been unable to obtain instructions from Mr Hall since 19 November 2021. Mrs Parker also advised that she had informed Mr Hall that he would need to attend the mention of the proceeding in the Duty Judge List on 16 December 2021.
[19] By application dated 15 December 2021, Wilson McKay, Ms Parker’s firm, seeks to withdraw as solicitors on the record for Mr Hall. In an affidavit sworn on 15 December 2021, Ms Parker sets out her efforts to progress a resolution of the dispute and to obtain instructions from Mr Hall and Mr Hall’s failure respond to her requests to comply with her firm’s conditions for accepting his instructions and to implement the settlement she had reached with Mr Gloyn.
[20] Attached as exhibits to the affidavit are copies of emails that Mrs Parker sent to Mr Hall’s email address. The email exchanges show that Mr Hall replied to some, but not many, of Mrs Parker’s messages.
9 At [6].
10 At [7].
[21]The exhibits show that:
(a)On 29 November 2021, Mrs Parker emailed Mr Hall a copy of a notice of change of solicitor for Mr Hall to sign;
(b)On 10 December 2021, Mrs Parker emailed Mr Hall advising him that he would need to attend to representing himself at the Duty Judge List on 16 December 2021.
[22]There is no evidence of any reply to these messages.
Duty Judge List mention on 16 December 2021
[23]Mr Hall did not appear at the Duty Judge List on 16 December 2021.
[24] Mrs Parker appeared in support of Wilson McKay’s application to withdraw. Mrs Parker informed the Court that she instructed a process server to serve the application to withdraw on Mr Hall personally. The process server called the telephone number Mr Hall used. A person who identified himself as Mr Hall’s brother answered and said that Mr Hall was at sea on a fishing vessel and was unlikely to return until the week of 20 December 2021.
Application to withdraw as solicitors on the record
[25] It is apparent from Ms Parker’s affidavit that Ms Parker and her firm have been unable to obtain instructions from Mr Hall and that Wilson McKay should be granted leave to withdraw as solicitors on the record for Mr Hall.
[26]I order accordingly.
Application to discharge interim order and dismiss proceeding
[27] The procedural history shows serial disregard for Court orders by Mr Hall. Mr Hall has failed to comply with the orders made by Downs J on 14 October 2021, by Brewer J on 11 November 2021 and by Woolford J on 18 November 2021. He also failed to appear at the Duty Judge List on 16 December 2021.
[28] While I have taken into account the possibility that Mr Hall may presently be at sea and out of contact, the reality is that Mr Hall has, for a prolonged period, sought to evade paying Ms Teague for fees incurred, despite having apparently agreed to an arrangement for settlement in July 2021 and despite the subsequent efforts of Mrs Parker and Mr Gloyn to broker a resolution.
[29] In the meantime, Ms Teague remains subject to an interim order which was made over five months’ ago and which was clearly intended to be temporary while Mr Hall progressed his substantive application. Mr Hall has failed to take any steps to progress the application.
[30] In these circumstances, I am satisfied that it is appropriate to discharge the interim order made by Lang J on 6 July 2021 and, in accordance with r 7.48 of the High Court Rules 2016, to strike out Mr Hall’s proceeding for failure to comply with the orders of the Court.
[31]I order accordingly.
[32]I order Mr Hall to pay Ms Teague’s costs on a 2B basis.
[33]A copy of this judgment is to be sent to Mr Hall’s address for service.
G J van Bohemen J
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