Jones v L & Y Holdings (Holding) Limited HC Auckland CIV 2010-404-1667

[2010] NZHC 1282

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-001667

BETWEEN  ALLAN LLOYD JONES AND MARIE EVELYN JONES

Plaintiffs

ANDL & Y HOLDINGS (HOLDING) LIMITED

Defendant

Hearing:         27 July 2010

Counsel:         IC Bassett for plaintiffs

Q Wang for defendant

Judgment:      28 July 2010 at 4:30pm

JUDGMENT OF ASSOCIATE JUDGE FAIRE [on application for leave to file additional affidavits]

This judgment was delivered by me on 28 July 2010 at 4:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Malloy Goodwin Harford, PO Box 9892, Auckland for plaintiffs

ForestHarrison, PO Box 828, Auckland for defendant

JONES V L & Y HOLDINGS (HOLDING) LTD  HC AK CIV 2010-404-001667  28 July 2010

[1]      The  defendant  applies  for  leave  to  file  three  additional  affidavits  in opposition to the plaintiffs’ application for summary judgment.

[2]      The affidavits are respectively:

a)        the affidavit of Anthony Ross Gardner, dated 1 July 2010, b) the affirmation of John Alan Long, dated 7 July 2010; and

c)        the affirmation of Vivienn Chue Kin Wong, dated 9 July 2010.

[3]      The plaintiffs oppose the filing of the affidavits of Anthony Ross Gardner and John Alan Long.

[4]      The application for summary judgment came before Associate Judge Abbott on 14 May 2010.  At that time he made orders for the filing and service of affidavits of opposition.  The affidavits were not filed within the time directed.  Further than that, no indication was given at the time that there would be an affidavit from an architect and, in particular, along the lines of the content of the affidavit now advanced on behalf of Mr JA Long.   Indeed, it was not until 1 July 2010 that any suggestion was made that an affidavit from an architect would be led on the defendant’s behalf.

[5]      Mr Bassett and his clients understandably feel aggrieved by the late making of the application.  When the matter came before Lang J on 15 July 2010 he noted that it was not then practical to allocate a fixture prior to the fixture for the summary judgment application to determine the leave application.  He therefore directed that the leave application and the summary judgment application be heard together.  He further  directed  that  the  plaintiffs  file  and  serve  affidavits  in  response  to  the additional affidavits now led in opposition by the defendant.   He made specific directions for the filing of additional submissions consequent on the filing of the further affidavits.

[6]      For  the  purpose  of  this  application  Mr Bassett  advised  me  the  plaintiffs would not:

a)       File further affidavits in reply; and

b)Alter the submissions that already had been filed in support of the application for summary judgment.

He noted, however, that the plaintiffs’ case had been prepared without the benefit of the additional defendant’s affidavits.  He observed that there would undoubtedly be a cost factor involved.   A further matter that was of considerable importance to the plaintiffs was the need to have an answer to this proceeding quickly because of the potential adverse consequences to the plaintiffs in the event that a finding was made against them that there was no justification for their cancellation of the subject contract.

[7]      Mr Wang drew attention to Nelson Lifecare Centre Ltd v Sampson[1] where it was said:

If too rigid an approach is taken, one possible consequence will be that affidavits in reply will be so limited that matters that could properly be put before the Court to show that summary judgment should be entered will not be available to the Court. The consequence is an unnecessary trial. Equally, if further affidavits are not allowed to be filed by a defendant, the consequence  could  be  that  summary  judgment  could  be  entered  the defendant who had a perfectly valid defence. The drafters of the Rules could not   have   envisaged   such   possible   injustice  arising  from  their  strict application. I agree with the Judge in the Allied Mortgage Nominees Ltd case that it is not a practice to be encouraged. However, given the very frailties of human nature, it is inevitable that on occasions both plaintiffs and defendants,  or  their  advisers,  will,  for  some  reason,  not  place  relevant material .going to the heart of whether or not summary judgment should be granted before the Court in the initial affidavit. It would almost make a mockery of the procedure if too rigid an application of the Rules led to that situation. It is a matter that can be readily and properly controlled by awards of costs, but it is important that all relevant material should be placed before the Court to enable justice to be done between the parties.

[1] Nelson Lifecare Centre Ltd v Sampson (1995) 8 PRNZ 376 per Hansen J.

[8]      The  defendant’s  failure  to  file  its  evidence  as  directed  is  unacceptable. However, to refuse to read the evidence goes too far.  That could lead to a position where a proper defence is denied with obvious injustice.  The harm cured by the late filing of the affidavits can be dealt with in other ways and, in particular, by appropriate orders as to costs.  I conclude therefore that the affidavits should be read.

Counsel  have  requested  that  I  reserve  the  question  of  costs  and  direct  that memoranda be filed so that the position can be analysed fully.

Orders

[9]      Accordingly, I order:

a)        The following affidavits and affirmations shall be filed and may be read in opposition to the summary judgment application, namely:

i)        the affidavit of Anthony Ross Gardner, dated 1 July 2010, ii)  the affirmation of John Alan Long, dated 7 July 2010; and

iii)      the affirmation of Vivienn Chue Kin Wong, dated 9 July 2010;

b)In the event that counsel cannot agree on costs, memoranda shall be filed in support, opposition and reply at seven-day intervals.

JA Faire

Associate Judge