Herron v Wallace - [2016] NZHC 1127

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-1806 [2016] NZHC 1127

BETWEEN
STUART WALTON HERRON

Plaintiff

AND

WAYNE ANDREW WALLACE First Defendant

SHADES OF AUTUMN LIMITED Second Defendant

BELMONT LIFESTYLE VILLAGE LIMITED

Third Defendant

Hearing: 25 to 28 May 2015 and 4 to 8 April 2016

Counsel:

CT Patterson and RA Dellow for plaintiff
DA Towle for defendants at the 25 to 28 May 2015 hearing
JE Hodder QC for defendants at the 4 to 8 April 2016 hearing

Judgment:

27 May 2016

JUDGMENT OF FAIRE J

This judgment was delivered by me on 27 May 2016 at 4:45 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Skeates Law, Auckland (G Skeates) Bruce Dell Law, Auckland

Herron v Wallace [2016] NZHC 1127 [27 May 2016]

Contents

Introduction ............................................................................................................[1] The objection..........................................................................................................[6] Defendants’ response............................................................................................[10] The contested evidence ........................................................................................[13] The law .................................................................................................................[15] Was permission already granted? .........................................................................[20]
The challenges to the brief .........................................................................................
Rule 9.11 [23] Hearsay [28] Opinion [32] Submission [37] The particular objections [38]

The exhibits ..........................................................................................................[58] Chronology...........................................................................................................[70] Conclusion............................................................................................................[71]

Introduction

[1] This judgment is part of a non-typical progression of this case through hearing. To summarise the background in brief, Mr Herron has brought a claim against Mr Wallace for recovery of a debt he says is owing. The case was part heard in May 2015. In September 2015 the defence sought leave to advance an affirmative defence of oppression. Leave was granted with consent and timetabling orders were made for the filing of evidence in relation to the oppression defence. A brief of evidence of the first defendant, Mr Wallace, was filed in December 2015.

[2] The plaintiff, Mr Herron, initially intended to give evidence. However, on the first day of the resumed hearing on 4 April 2016, the Court was informed that Mr Herron would no longer be giving evidence.

[3] This judgment provides my reasons for ruling on the plaintiff’s objections to supplementary evidence in chief, re-examination and aspects of cross-examination of Mr Wallace as well as the production of certain exhibits and amendments to the chronology.

[4] During the hearing, the Mr Patterson signalled to the Court that the plaintiff intended to raise objections to certain pieces of evidence (“the contested evidence”). The background to this position is given in my minute of 8 April 2016 which provided:

[1] The plaintiff’s counsel signalled an intention to object to the
evidence to be led on behalf of the defendants.

[2] Counsel were content, because of time constraints, that I provisionally hear the evidence but reserve the objection on the basis that it be determined on the papers. I adopt counsel’s approach and confirm, by consent, the orders that I announced in court, namely that

a) The defence evidence is provisionally heard subject to the
court ruling on the plaintiff’s objection to it;

b) The plaintiff’s submissions in support of the objection to the
defendants’ evidence shall be field and served by 4pm on
12 April 2016, together with copied of…

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.

Continue reading Herron v Wallace

Details

AGLC: Herron v Wallace [2016] NZHC 1127
Case: [2016] NZHC 1127
Decision Date: 27 May 2016

CaseChat Overview and Summary

The case of Herron v Wallace was heard in the High Court of New Zealand. The plaintiff, Stuart Walton Herron, sought to recover a debt from the defendant, Wayne Andrew Wallace. The case was part-heard in May 2015, and the defence sought leave to advance an affirmative defence of oppression, which was granted. The plaintiff raised objections to the defendants' supplementary evidence in chief, re-examination, and aspects of the cross-examination of Mr Wallace, as well as the production of certain exhibits. The court was required to decide whether the defendants needed to seek permission to offer additional evidence, or whether permission had already been granted, and whether the contested evidence was admissible under the Evidence Act 2006.

The court found that the defendants had leave to introduce the additional evidence as it was inherent in the previous direction, and the plaintiff should have challenged the admissibility of the brief of evidence within the required time. The court considered whether the contested evidence fell under the hearsay, opinion, or submission rules, and whether it was relevant to the oppression defence. The court found that most of the contested evidence was admissible, except for certain statements in Mr Wallace's brief of evidence which were deemed opinion and not admissible. The court also found that the additional exhibits were relevant to the proceedings and would not cause injustice or unfairness, and therefore, they were admitted in evidence. The objections to the examination in chief, cross-examination, and re-examination of Mr Wallace were dismissed.

Orders