Hanrahan v Health 360 Limited

[2023] NZHC 2655

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CIV-2023-425-1

[2023] NZHC 2655

BETWEEN

VICKIE HANRAHAN

Plaintiff

AND

HEALTH 360 LIMITED

First Defendant

MARCELLE PATRICIA NOBLE
Second Defendant

ANDREW JAMES FRENCH
Third Defendant

HANS PETER RAETZ

Fourth Defendant

Hearing:

(On the papers)

Counsel:

O J Lund for Plaintiff

M K Crimp for the First, Second and Third Defendants M R Walker and B B Gresson for Fourth Defendant

Judgment:

22 September 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(Granting leave for counsel to withdraw)

HANRAHAN v HEALTH 360 LIMITED [2023] NZHC 2655 [22 September 2023]

[1]        Ms Crimp has, by interlocutory application dated 19 September 2023, applied for orders under r 5.41 of the High Court Rules 2016 (the Rules) that she is no longer solicitor on the record for the first, second and third defendants.

[2]        The application is said to be on notice but an affidavit of service has not been provided. While I am satisfied the orders should be made, confirmation of service needs to be provided before the orders take effect.

[3]        Ms Crimp, in her affidavit, says she has advised the defendants of her intention to apply for the orders but I do not read her affidavit as confirming service of the application albeit, it is implicit that the application has been served. Nonetheless, such should be made express.

[4]        As regards the second defendant, no order is necessary as the second defendant has filed a notice stating that she intends to act in person and provided a new address for service. Accordingly, by virtue of r 5.41(2)(b)(i) of the Rules, no order is required in relation to the second defendant.

[5]        The second defendant is the director of the first defendant company and has purported to file a notice saying that she wishes to represent the first defendant company. That notice is ineffective. The second defendant is not entitled to represent her company. Accordingly, leave is required.

[6]        While r 5.41 requires proof that the second defendant’s notice has been served on all other parties, there is no evidence that has occurred. Ms Crimp is requested to send that copy of the second defendant’s new address for service to counsel for the fourth defendant and the plaintiff.

[7]        While Ms Crimp says the third defendant has indicated he intends to instruct other counsel, no steps have been taken in that regard.

[8]        Accordingly, in respect of the first and third defendants, Ms Crimp requires an order removing her as solicitor on the record.

[9]        I am satisfied such an order should be made. The application prepared  by  Ms Crimp includes a notice as to the effect of r 5.42, that is, that the address for service of the first defendant will be at its registered office and for the third defendant, at his last known address.

[10]      Given neither the first nor third  defendants  are  providing  instructions  to Ms Crimp, it is appropriate there be an order that she is no longer solicitor on the record for the first and third defendants. The address for service for the first defendant is at its registered office. The address for service for the third defendant is at the address   shown   on   the   intituling   of   the   interlocutory   application   dated     19 September 2023, which I assume to be his last known address. Ms Crimp is to correct the position if that assumption is incorrect.

[11]      Accordingly, the above orders will come into effect on Ms Crimp filing proof of service of the application on the second and third defendants. I request Ms Crimp include in that proof of service, her advice that she has sent the second defendant’s notice to counsel for the fourth defendant and the plaintiff. That proof of service will also satisfy r 5.41(3)(c) of the Rules which requires a copy of this order to be served on every party to the proceeding who has given an address for service.

Associate Judge Lester

Copy to:

Duncan Cotterill, Wellington (for Plaintiff)

Harmans Lawyers, Christchurch (for First, Second and Third Defendants) Todd Walker, Queenstown (Fourth Defendant)