Huljich v Huljich - [2018] NZHC 2637

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FURTHER ORDER OF THE COURT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2014-404-002631

[2018] NZHC 2637

BETWEEN
ELIZABETH HULJICH

Plaintiff

AND

CHRISTOPHER PETER HULJICH

First Defendant

AND

PETER KARL CHRISTOPHER HULJICH

Second Defendant

AND

MICHAEL STEPHEN HULJICH

Third Defendant

Hearing: 20 September 2018

Appearances:

Aaron Nicholls for the Plaintiff

Daniel McLellan QC, Jenny Cooper QC and Honor Ford for the Defendants

Judgment:

10 October 2018

JUDGMENT OF MOORE J

[Applications for relief from sanction and rescission or recall]

This judgment was delivered by me on 10 October 2018 at 12:00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar / Deputy Registrar Date:

HULJICH v HULJICH & ORS [2018] NZHC 2637 [10 October 2018]

Introduction

[1] In my judgment of 24 August 2018 I granted the plaintiff relief from the effect of unless orders I had made on 24 May and 24 July 2018.1 I now have two applications before me concerning two related orders made in that judgment, on which I heard argument on 20 September 2018:

(a)an application for further relief from sanction, which took effort because of the plaintiff’s failure to file the draft index of documents to the common bundle by 31 August 2018; and

(b)an application for rescission or recall of my order striking out Part B of the prayer for relief on the sixth cause of action in the eighth amended statement of claim.

[2]I address each application in turn.

The application for relief

[3] In my judgment of 24 August 2018 I ordered that the plaintiff file and serve the draft index of documents to the common bundle by 31 August 2018. Although served within time the index was not filed.

[4] Because unless orders are self-executing, the effect of that non-compliance was the sanction applied and the plaintiff’s claim was struck out.2 Accordingly, on 18 September 2018, the plaintiff applied for relief from sanction on the basis non- compliance was inadvertent, and explicable because it is customary for draft indices to be served only. Mr Nicholl, the plaintiff’s solicitor, submitted that to strike out the claim in its entirety on the basis of this non-compliance would be disproportionate.

[5] Responsibly, Mr McLellan QC for the defendants agreed strike out on the basis of this non-compliance alone was not appropriate. However, at the hearing he drew my attention to a number of deficiencies with the draft index. The defendants’ solicitor

1 Huljich v Huljich [2018] NZHC 2205.
2 SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494 at [29].

had apparently written to Mr Nicholls seeking rectification of these alleged deficiencies by 14 September 2018. This, I was told, had not been done.

Decision

[6] The unless orders I made in my judgment concerned the filing and service 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 Huljich v Huljich

Details

AGLC: Huljich v Huljich [2018] NZHC 2637
Case: [2018] NZHC 2637
Decision Date: 10 October 2018

CaseChat Overview and Summary

In Huljich v Huljich, the plaintiff sought relief from the effect of unless orders and the rescission or recall of a previous order made by the court. The case was heard on 20 September 2018, and judgment was delivered on 10 October 2018. The plaintiff, Elizabeth Huljich, sought relief from the effect of a sanction for failing to file a draft index of documents by a specified date. The defendants argued that the plaintiff's failure to file the index was not inadvertent and that the strike-out was appropriate. The court accepted that the oversight should be viewed in light of the fact that the aspect of the orders requiring filing was unorthodox. The court also found that the defendants had suffered no prejudice by reason of the non-compliance, and that the strike-out would be disproportionate. Therefore, the court granted relief from sanction, and the plaintiff's claim was reinstated.

The plaintiff also sought rescission or recall of the court's previous order striking out Part B of the prayer for relief on the sixth cause of action in the eighth amended statement of claim. The court declined to exercise its power under the rules to rescind or recall the order, finding that the order was made with the benefit of argument and that the plaintiff's ability to later provide particulars did not constitute a change of circumstances justifying rescission. The court also found that there was no special reason justice required that the judgment be recalled. The timetabling directions were varied to accommodate the delay in filing the common bundle.
In summary, the court granted relief from sanction and reinstated the plaintiff's claim, but declined to rescind or recall the previous order striking out Part B of the prayer for relief. The timetabling directions were varied to accommodate the delay in filing the common bundle. Costs on the two applications were to lie where they fell.

Orders