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 a draft index of documents for inclusion in the common bundle. But for one oversight, those orders were complied with. I accept that oversight should be viewed in light of the fact the aspect of my orders requiring filing was unorthodox. More importantly, the defendants accept for the unless order to take effect merely due to this technical oversight would be disproportionate. The defendants have suffered no prejudice by reason of the non-compliance. Accordingly, I am satisfied relief should be granted, and the claim should remain on foot.

[7]                 As for the deficiencies in the draft index, which Mr McLellan submitted were in breach of r 9.4 of the High Court Rules 2016, I accept the defendants’ concerns may be well-founded. However, no formal application in respect of compliance with r 9.4 has been filed. If the parties are unable to resolve this issue between them, the proper course is for the defendants to apply for orders.

The application for recession or recall

[8]                 In my judgment I struck out Part B of the prayer for relief on the sixth cause of action in the eighth amended statement of claim because the provision of particulars at the time were dependent on further discovery, which I declined to order.

[9]                 That prompted the plaintiff to apply for recession or recall on 31 August 2018 on the basis there was no argument on strike out of that aspect, and because there had been a change of circumstances, namely the provision of particulars.

[10]              In a Minute of 7 September 2018 I indicated a preliminary view, not having heard from the defendants, that course was appropriate; Mr Nicholls was correct when he claimed the prayer for relief had not been explicitly addressed in argument.

[11]              The defendants subsequently filed a notice of opposition, and in an accompanying memorandum advised Ms Cooper QC had made explicit reference to the prayer for relief in both her written and oral submissions.

[12]              Having reviewed the transcript, it is clear the defendants are correct. Accordingly my order was  made  with  the  benefit  of  argument.  Moreover,  as  Mr McLellan submitted at the hearing, the fact that the plaintiff was belatedly able to provide particulars does not constitute a change of circumstances justifying rescission in terms of r 7.49. The pleading in the eighth amended statement of claim was that further particulars of what losses the plaintiff had suffered on account of the first defendant’s alleged breach of fiduciary duty, and what equitable damages were sought, could only be provided following discovery. As Mr McLellan said, the plaintiff’s ability to later provide particulars without discovery indicates her earlier failure was a deliberate flouting of Court orders. In those circumstances I agree with Mr McLellan that no indulgence is warranted.

[13]              It follows I decline to exercise my power under r 7.49 to rescind the order striking out Part B of the prayer for relief on the sixth cause of action. Were it necessary, I would also decline my power to order recall because there is no special reason justice requires that the judgment be recalled.3

Timetabling orders

[14]              At the hearing, Mr McLellan also pointed out that on the current timetabling orders, the common bundle is to be filed by 5 October 2018, but the defendants’ briefs are not due to be filed and served until 31 October 2018. That is a consequence of a variation I ordered, on the defendants’ request, in my judgment of 24 August 2018.

[15]              Mr McLellan sought a consequential variation of the date for filing of the common bundle to 9 November 2018. Mr Nicholls did not oppose that variation, and I made the order at the hearing.

3      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

Result

[16]              Relief from the sanction of the unless order in my judgment of 24 August 2018 is granted, and the plaintiff’s claim is reinstated.

[17]              I decline to rescind or recall my order striking out Part B of the prayer for relief on the sixth cause of action.

[18]The timetabling directions are varied in the manner set out at [15] above.

Costs

[19]              I have earlier ordered that the plaintiff pay indemnity costs for all steps taken before me up to 24 August 2018, and have received submissions from the parties particularising the reasonably incurred expenses for which indemnity is sought.

[20]              While the plaintiff has succeeded on one application I heard on 20 September 2018, which was made necessary by no real fault of her own, she has failed on the other. Given that, I have determined that costs on the two applications should lie where they fall.

Moore J

Solicitors/Counsel:

Mr Nicholls, Auckland

Mr McLellan QC, Auckland Ms Cooper QC, Auckland Ms Ford, Auckland