Hislop v Hislop

[2015] NZHC 989

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001556 [2015] NZHC 989

BETWEEN

MAUREEN LILIAN HISLOP

Plaintiff

AND

CLARENCE MERVYN HISLOP Defendant

Hearing:	11 May 2015
Appearances:	G L Harrison for Plaintiff K A Muir for Defendant
Judgment:	11 May 2015

ORAL JUDGMENT OF VENNING J APPLICATION FOR ADJOURNMENT

Solicitors:           Anthony Frankovich, Auckland

Morgan Coakle, Auckland

Copy to:            G L Harrison, Auckland

HISLOP v HISLOP [2015] NZHC 989 [11 May 2015]

[1]      This case has a two day fixture allocated in this Court to commence Monday next week, 18 May 2015.

[2]      The defendant seeks to have that fixture vacated.   The case itself on the pleadings is a relatively straightforward one.   The plaintiff and defendant are registered as owners of a property as tenants in common.  The issue on the present pleadings is whether the intention of the parties and the facts surrounding their purchase support the legal ownership as tenants in common or whether in fact the plaintiff holds her share as tenant in common on trust for the defendant, he having contributed the purchase price for the property.

[3]      The parties themselves were, I understand from counsel, formerly married but separated in 1999. At that stage property issues between them were dealt with by two s 21A agreements.  Subsequently the parties had further contact.  In September

2012 the present property was purchased.   I understand from counsel that the suggestion was the parties were to live in the property as flatmates with the plaintiff providing some support to the defendant, the defendant having earlier that year, in January 2012, suffered a significant stroke.

[4]      It is clearly in the interests of both parties to resolve the issues between them as soon as possible because, as Mr Harrison notes, the plaintiff herself is currently in rented accommodation.

[5]      The application to adjourn the fixture is advanced on the grounds:

(a)       there has been a change in representation for the defendant because of a conflict of interest;

(b)      there is an amendment needed to the pleadings;  and

(c)       two material witnesses are unavailable.

[6]      There is also a suggestion that the plaintiff’s briefs of evidence were provided

slightly late, although I do not consider that to be a material matter.

[7]      The  solicitors  acting  on  the  purchase  have  continued  to  represent  the defendant through the course of these proceedings, including at a settlement conference. As Mr Harrison observed, there was no objection taken to that on behalf of the plaintiff as it was hoped the matter might be resolved short of a fixture. However, Mr Muir has been instructed very late in the piece because of the conflict. He only received instructions initially on Thursday, took full instructions as far as he could and then filed this application for adjournment on Friday.

[8]      Given the issues involved in the proceedings and Mr Muir’s experience it is possible that he could deal with the matter at short notice.  He could also prepare and file an amended claim, Mr Harrison noting that the amendment to the pleadings would not be opposed.  An amendment raising issues of undue influence might be required.  There is also a suggestion that the hearing might run from two days into a third day. The Court could cope with that issue.

[9]      The principal matter of concern to the Court is the issue of the availability of the witnesses necessary to support the defendant’s case.  The two witnesses in issue are a consultant psychiatrist, Dr Kritzinger, who attended the defendant after he suffered the stroke and has been treating him since.   Dr Kritzinger assessed the defendant in April 2012 and October 2013.  Dr Kritzinger has prepared a letter in which he confirms that, since November 2014 he has not had any discussions or correspondence about the matter with the defendant’s advisers and was only advised on 8 May that there was a defended hearing on 18 May.  His position is that he is unfortunately not available to give evidence at that time.  On Monday 18 May he is a duty  person  at Auckland  Hospital  and  cannot  be  in  Court.    From  Mondays  to Thursdays he is committed to working at Auckland Hospital and on Fridays works at a clinic at Point Chevalier.  He needs six weeks’ notice to roster himself out from those duties and arrange cross-cover.

[10]     Mr Harrison’s response to the difficulty that Dr Kritzinger faces is to suggest that a subpoena could be issued requiring him to attend. As he observed a subpoena in those circumstances was a somewhat blunt instrument which would require the doctor to attend, and would then require the Hospital to make alternative arrangements.

[11]   The other witness is a legal executive who attended the parties on the conveyancing transaction.   She is currently living and working in Australia.   Her position relayed by the defendant is that she did not know there was a hearing scheduled for 18 May and because of her work commitments she is not available at short notice and certainly not available for a hearing on 18 May.  Mr Harrison notes that the defendant has property and would be able to fund her travel to New Zealand for the purposes of the hearing.

[12]     The Court is always reluctant to vacate fixtures that have been allocated for some time.  In a case such as this it is obviously in the interests of both parties, as Mr Muir acknowledged, that the issues between them be resolved sooner rather than later.  I am also conscious of Mr Harrison’s submission on behalf of the defendant that she is living in rented accommodation, although  as Mr Muir observed that appears to have been her position for some time.

[13]     Ultimately an application for adjournment of a fixture must be determined by the Court weighing the interests of justice.   In this case, for whatever reason, the defendant’s case is not prepared to the stage where it can properly proceed to a fixture next week.  I am satisfied, having heard from counsel, that while Mr Muir as experienced counsel in these areas, could deal with a short notice fixture if the witnesses were otherwise fully briefed and prepared, the major issue in this case is the availability or non availability of the two principal witnesses.  This is not a case where the witnesses, whose unavailability raises the difficulty, are peripheral witnesses.  Both are fundamentally important to the defendant’s case.

[14]     I am not, in the circumstances, prepared to maintain the fixture and force it on, on the basis that a reluctant professional witness be subpoenaed at short notice causing a disruption to his employment, his employer and potentially patients at the Hospital and nor, on the information before the Court at the moment, am I prepared to force the matter on, on the basis that the legal executive would be able to travel from Melbourne at short notice.  She is potentially an important witness.

[15]     The defendant and his former advisers must assume responsibility for the way this matter has developed but that can be dealt with by way of an order for costs.

[16]     Standing back and looking at the matter overall I consider it in the interests of justice to grant this application for adjournment of the fixture on terms as to costs and on strict terms as to a timetable for the amendment to the pleadings and with a direction that there be priority afforded to an alternative fixture.  The existing fixture is vacated accordingly.

[17]     After hearing further from counsel I make the following directions for the disposition of this case:

(a)       an amended defence to be filed and served by 25 May 2015;

(b)      any reply to that defence to be filed and served by 8 June 2015;

(c)      further discovery to be completed by 8 June 2015, that discovery to be limited to contributions to the property in issue but to  encompass financial records, being relevant bank accounts, visa statements, and related financial records for both parties from February 2012 down to the issue of the proceedings;

(d)      revised briefs on the plaintiff’s part to be exchanged by 22 June 2015;

(e)       defence briefs to be served by 30 June 2015;

(f)      the  Registrar  is  to  allocate  a  two  day  fixture  (although  Mr  Muir suggested that it may take slightly longer) on the first available date in the weeks of 6, 20 or 27 July 2015 as a matter of priority.

[18]     This adjournment has been caused by the failure of the defendant and his advisers (I emphasise not Mr Muir) to prepare the case for trial despite their clear obligation to do so.

[19]     The plaintiff is to have the costs on this adjournment application in terms of appearance this morning. The plaintiff is also to have a contribution towards her wasted costs, that is to be at a 30 per cent of the time otherwise allocated in the schedule to the High Court Rules for the preparation of witness statements as they

will have to be revised.  I fix those total costs at $1,990.

Venning J