Jungwon Limited v Splitrock Limited HC Wellington CIV-2007-485-1515

[2007] NZHC 1989

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2007-485-1515

BETWEEN  JUNGWON LIMITED Plaintiff

ANDSPLITROCK LIMITED First Defendant

ANDGARTH HAMISH ROSSON Second Defendant

AND  NAGIN BHIKHA Third Defendant

Hearing:         13 August 2007

Appearances: J Park for Plaintiff

J McGuire for Defendants

Judgment:      13 August 2007

ORAL DECISION OF ASSOCIATE JUDGE D I GENDALL

[1]      The plaintiff’s application for summary judgment was set down for a first- call before me today 13 August.

[2]      Mr Park appeared as counsel for the plaintiff.  He noted that he had travelled from Auckland for this matter and wished it to be heard today.

[3]      Mr McGuire appeared as counsel for the defendants.

[4]      The original statement of claim and notice of proceeding in this matter was filed in this Court on 16 July 2007.

JUNGWON LIMITED V SPLITROCK LIMITED AND ORS HC WN CIV-2007-485-1515  13 August 2007

[5]      An amended statement of claim from the plaintiff was filed on 9 August

2007.

[6]      As I understand the position, it is with respect to that amended statement of claim that the plaintiffs seek summary judgment today.

[7]      On 8 August 2007 Mr McGuire for the defendants filed a notice of opposition to the plaintiff’s application for summary judgment which itself was dated 7 August

2007.

[8]      Before me today Mr McGuire sought an adjournment of this matter to enable the defendants to file a statement of defence and a counter-claim which he has signalled with respect to the plaintiff’s claim.

[9]      Mr Park for the plaintiff opposed any adjournment.  He maintained that the matter should proceed to a hearing, particularly as he had travelled from Auckland for this purpose.

[10]     Mr McGuire however referred to R 187(6) High Court Rules which states:

(6)       Where an amended pleading introduces a fresh cause of action, the other party shall file and serve his defence thereto within 14 days after the day on which the amended pleading is served on him.

[11]     He contended that this R 187(6) had the effect in the present case of allowing the defendants a period of 14 days from service of the amended statement of claim to file and serve their defence.  Mr McGuire noted that this period has not as yet run out.

[12]     On the face of matters, the amended statement of claim filed by the plaintiff provides  some  alteration  and  amendment  to  the  original  pleading  filed  by  the plaintiff  in  this  matter.    I am  satisfied  therefore  in  terms  of  R  187(6)  that  the defendants should be given an opportunity to provide a proper response to this pleading.  In addition, Mr McGuire for the defendants has signalled that a counter- claim is to be brought against the plaintiff.  That said, it is obviously important that

the Court has before it all the available material before considering any summary judgment application.

[13]     The fact however that Mr Park has travelled from Auckland today for the hearing of this matter is unfortunate.  Clearly some better liaison between counsel for the respective parties might have assisted the position.  It appears, however, that this did not occur.

[14]     In summary then, I now make the following directions:

a)       The  plaintiff’s  application  for  summary judgment  is  set  down  for hearing, (one half day is allowed) commencing at 10 am on the 6th of September 2007.  This is a firm fixture.

b)The  defendants  are  to  file  and  serve  any  statements  of  defence together with any affidavits in support of their notice of opposition to the summary judgment application by 27 August 2007.

c)       The plaintiff is to have until 2 September 2007 to file and serve any affidavits in response.

[15]     So far as costs on the appearances today are concerned these are reserved at this point.

“Associate Judge D.I. Gendall”

Solicitors:        Y T Choi Lawyers, Auckland for Plaintiff

J M McGuire, P O Box 14 461, Kilbirnie, Wellington for Defendants