Jan Bain Holdings Limited v Marko Properties Limited

[2013] NZHC 2385

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-003203 [2013] NZHC 2385

BETWEEN

JAN BAIN HOLDINGS LIMITED

Plaintiff

AND

MARKO PROPERTIES LIMITED

First Defendant

PAIHIA TRUST LTD
Second Defendant

BRETT EVAN CRAN
Third Defendant

KNIGHT COLDICUTT
Fourth Defendant

ZELJAN UNKOVICH
Fifth Defendant

Hearing:

12 September 2013

Appearances:

I M Hutcheson for Plaintiff

S Hunter for Third and Fourth Defendants P Napier for Fifth Defendant

Judgment:

12 September 2013

JUDGMENT OF VENNING J

Re: application by plaintiff for adjournment of trial

Solicitors:             Keegan Alexander, Auckland

Gilbert Walker, Auckland

Cockroft D’Young Moorhouse, Auckland

Copy to:            I M Hutcheson, Auckland

JAN BAIN HOLDINGS LTD v MARKO PROPERTIES LTD [2013] NZHC 2385 [12 September 2013]

[1] This case is scheduled for a five day fixture due to  commence  on  23 September 2103. The plaintiff’s claim is now only against the third and fourth defendants and fifth defendant. The claim is based on the plaintiff’s allegation that those parties owed the plaintiff a duty of care in relation to the preparation of a mortgage document. The third and fourth defendants acted for another party to the transaction and the fifth defendant acted for the plaintiff.

[2] The plaintiff is currently in default of timetable directions of the Court. The plaintiff has applied to vacate the fixture and adjourn the proceeding to an alternative trial date. That is opposed by the defendants.

[3]   The adjournment is advanced on the basis of the ill health of the director of the plaintiff, who will be a crucial witness for the plaintiff. The defendants acknowledge the position of the director but make the point that they are entitled to some certainty and also note the delay to date. The defendants have suggested the appropriate course would be for the plaintiff to discontinue leaving the possibility of the plaintiff reissuing proceedings if the director’s health improved sufficiently to enable that.

[4] I should briefly refer to the procedural background. As long ago as 30 October last year this case was allocated the trial to commence on 23 September 2013.  Directions were made at that time for the plaintiff’s briefs to be exchanged on

19 July 2013. The plaintiff was also to file an amended statement of claim quantifying the plaintiff’s claim. At the request of the plaintiff the time for filing and serving the amended statement of claim was extended from 30 November 2012 to 25 January 2013. The plaintiff failed to meet that revised timetable.

[5]      The file was referred to me as List Judge at the end of July.  On 30 July 2013 I noted the plaintiff’s default and made further directions to ready the case for hearing, including extending the time for the plaintiff to exchange its briefs to 12 August 2013. The plaintiff has not met that direction. Instead, by way of memorandum from time to time, the plaintiff has sought to vacate the fixture. The Court declined to vacate the fixture on the basis of the memoranda which has led to the formal application for adjournment of the trial.

[6]   The application is made on the grounds that Mr Taylor, the sole director of the plaintiff and primary witness for it, is unwell and incapacitated, has been unable to instruct counsel in relation to the preparation of evidence and would be unable to give evidence at the trial. The application is supported by an affidavit by Mr Taylor. In it Mr Taylor recites his medical condition and attached a medical certificate. He asks the fixture be vacated and a new trial date and trial directions be set as appropriate.

[7] The medical certificate confirms Mr Taylor was admitted to hospital in July, underwent surgery on 25 July 2013 but was discharged home on 10 August 2013. However, despite being at home since 10 August the medical certificate goes on to record that he has advanced arterial disease and has in the past been diagnosed with cerebral ischemic dementia. In the surgeon’s opinion Mr Taylor’s ability to discuss legal matters is likely to be impaired to a moderate degree by this and his recent ill health from which he remains convalescent.

[8] The difficulty for the Court is that it is not  apparent  from  the  medical certificate whether it is realistic to expect Mr Taylor’s position to improve so that, at some stage in the future, he will be able to both instruct counsel and, importantly, to take part in a five day trial on behalf of the plaintiff.

[9]     I should record that in discussion with Mr Hutcheson, counsels’ best estimate at this stage is that the claim is in the region of $300,000 to $400,000.

[10] Mr Hutcheson has suggested the fixture be vacated, and the  matter  be reviewed towards the end of the year. In the event the plaintiff’s position has not improved the plaintiff may well accept a discontinuance is required.

[11]   The defendants make the point that the defendants have incurred costs to date in preparing for the fixture (although counsel accept they have not fully prepared) and also submit that they are entitled to some certainty in the matter.

[12] As discussed with counsel the Court cannot force a party to discontinue other than placing a party in a position where that is their only option.  The application

before the Court is made pursuant to r 10.2. The overriding issue is the interests of justice.

[13] In the present case I accept that the reason the plaintiff is not prepared for trial is Mr Taylor’s ill health but, as noted, the concern for the Court is that on the evidence before the Court at present there is no clear evidence as to whether Mr Taylor’s health will improve sufficiently to enable the plaintiff to pursue its claim.

[14] Balancing the interests of the plaintiff in relation to its potential claim against the defendants, and the defendants’ position as best as I am able, I consider the appropriate course is to grant the vacation of the fixture and adjournment sought by the plaintiff but to do so on terms which will provide some certainty to the defendants.

[15] The fixture is vacated but the plaintiff’s claim is stayed on the following conditions:

(a)First, the plaintiff is to pay the third and fourth defendants and the fifth defendants’ wasted costs on the attendances relating to the plaintiff’s default to date, this morning’s hearing and some preparation for trial, which will be wasted. For certainty I fix the costs at $4,000 in each case, in other words $4,000 payable to the third and fourth defendants and $4,000 payable to the fifth defendant. Those costs are to be paid by 10 October 2013.

(b)Second, the proceedings are stayed until the plaintiff files and serves an amended statement of claim quantifying its claim and at the same time provides further discovery to support that and exchanges the plaintiff’s briefs of evidence;  and

(c)third, the proceedings are stayed until the plaintiff files a further affidavit updating his medical position, including a certificate from his medical advisers confirming he would be able to cope with a five day trial in the High Court.

[16] If the conditions in [13] (b) and (c) are not complied with by 5 December 2013 the plaintiff’s claim against the defendants will be struck out with judgment entered for the defendants unless the plaintiff’s claim is earlier discontinued.

Venning J