Kidd v van Heeren HC Auckland CIV 2004-404-6352
[2005] NZHC 1093
•16 August 2005
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2004-404-6352
BETWEEN M D KIDD Plaintiff
AND A P VAN HEEREN Defendant
Hearing: 14-15 April 2005
Appearances: B O’Callahan and A E FitzHerbert for plaintiff
C Hodson QC and C N Brick for defendant
Judgment: 16 August 2005
JUDGMENT OF ALLAN J
In accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 9.30 am on Tuesday 16 August 2005.
Solicitors:
Carter & Partners PO Box 2137 Lower Shortland St Auckland, [email protected]
Jones Fee, PO Box 1801, Auckland: [email protected] , Counsel
C Hodson QC, PO Box 10242, The Terrace, Wellington
M D KIDD V A P VAN HEEREN HC AK CIV 2004-404-6352 [16 August 2005]
Introduction
[1] Between 1975 and about 1991 the parties to this proceeding were in a business relationship together. The plaintiff says it was a partnership. The defendant denies that. Whatever the true position, the venture was very successful and the parties made a lot of money. It is claimed that the value of the combined assets acquired by the parties grew to between US$25-30,000,000.
[2] Regrettably the parties fell out. Over a period of several years, commencing in about 1987, there were discussions about the manner in which they might deal with their businesses so as to enable them to go their separate ways. Those businesses were international in scope, and the affairs of the parties were complex.
[3] Various documents were executed but the plaintiff was not satisfied that there had been a proper division of assets. In consequence he filed proceedings in this Court in 1996.
[4] In September 1997, Smellie J heard an application by the defendant for a stay of proceedings. The stay application was based upon a document executed by the parties in which the defendant claimed they had agreed to resolve the disputes between them, in accordance with South African law, in the Courts of South Africa. There was also a claim by the defendant that New Zealand was a forum non conveniens. Smellie J granted the stay on certain terms. This proceeding has remained stayed ever since.
[5] In the meantime the plaintiff commenced proceedings in South Africa as envisaged by Smellie J. As the result of certain developments in the South African litigation, the plaintiff now applies to lift the order for stay upon the grounds that there has been such a change of circumstances since the date of Smellie J’s order, that it is appropriate the dispute between the parties be heard on the merits in this Court, rather than the South African Courts. If the stay is lifted the plaintiff proposes
to file a notice of discontinuance in South Africa, or alternatively to apply to dismiss his own proceeding there.
[6] The defendant opposes the order sought by the plaintiff. The defendant says little has changed and the grounds upon which Smellie J thought it proper to order a stay provide justification for the refusal of the present application.
[7] There is a collateral issue. In support of his present application, the plaintiff filed a lengthy affidavit by a Mr Cooper who was retained by the plaintiff in 1994 as a private investigator for the purpose of making inquiries aimed at the resolution of the plaintiff’s dispute with the defendant. Mr Cooper has been retained by the plaintiff ever since. His affidavit contains a great deal of material relating to the course of his inquiries since 1994, including considerable detail regarding certain incidents which have occurred in the course of his investigations. Some of those incidents are somewhat colourful in character. There are numerous allegations in Mr Cooper’s affidavit of improper behaviour on the part of the defendant and those associated with him; the implication is that the defendant is not a man of honour and that the Court ought to exercise some care in assessing the defendant’s motives and bona fides.
[8] The defendant applies to strike out Mr Cooper’s affidavit in whole or in part, upon the ground that significant portions of it are either irrelevant to the matters in issue, or contain hearsay or impermissible statements of opinion. The application is based on r 510 and/or the inherent jurisdiction of the Court.
[9] Although initially Mr Hodson sought to have his application to strike out heard in advance of the plaintiff’s application for the lifting of the stay, ultimately the two applications were heard sequentially before me. I accordingly deal with the defendant’s application in this judgment.
The judgment of Smellie J
[10] On 22 October 1997 Smellie J delivered a carefully reasoned judgment on the application for stay. It is reported at [1998] 1 NZLR 324. In order to determine
whether it is appropriate now to lift the stay granted by Smellie J, it is necessary to review his judgment in some detail. It commences by setting out a summary of the factual background against which the issues were argued. It is convenient to reproduce the greater part of what Smellie J then said:
Factual background
The plaintiff is a British citizen, the defendant a Dutch citizen. Prior to 1975 they were both employed by a company in Johannesburg trading internationally in, inter alia, steel and timber. In 1975 they decided to set up their own company – Galaxy Export/Import Co Pty Ltd (Galaxy) and commenced to trade as Tesco International SA. The company was successful, particularly in trading internationally in steel. Early in 1979 to facilitate its trading outside South Africa a further company was established in the Netherlands Antilles, named Genan Trading Co NV (Genan). The formation of the company was effected in the Netherlands and the plaintiff and defendant were equal shareholders.
Genan traded successfully internationally in the steel market and built up substantial cash surpluses. Throughout this period and subsequently further companies were established in South Africa, Hong Kong, New Zealand, the United Kingdom and Zimbabwe. In all of them the plaintiff and defendant held equal shareholdings.
By mid-1980 the parties were concerned about the political situation in South Africa and decided to investigate an alternative base. After considering Canada, USA, Europe, and Australia, both plaintiff and defendant decided to apply for permission to emigrate to New Zealand under the “entrepreneurial scheme” which was then in place. They were both accepted as immigrants and to establish their business presence they purchased a New Zealand company, Prime International Ltd, and each purchased a home in or near Auckland.
The defendant left South Africa and set up home in New Zealand in about
1981 but the plaintiff remained on in South Africa, because Genan was still
trading extensively there, until 1987 when it was decided the plaintiff would move to the United Kingdom to be closer to his family. In the meantime substantial assets had been acquired in New Zealand, including the Huka Lodge at Taupo and a shareholding in Wellesley Resources Ltd (Wellesley). Genan’s stake in Wellesley was sold in July 1987 just prior to the crash for some NZ$30m. Other assets were acquired in New Zealand, including 80 per cent of the shares in Optech International Ltd. Dolphin Island in Fiji was also purchased with the idea of developing it.
The plaintiff alleges in his statement of claim, and supports it by affidavit evidence which is not challenged by the defendant, that between 1987 and
1991 they had various disagreements about how their businesses should be run. One of the areas of dispute appears to have been the non-payment of debts which the plaintiff says are validly owing to an Algerian state steelmill
called Sider, but which the defendant does not accept.
Although the circumstances under which they decided to terminate their relationship and distribute their assets is the subject of conflicting affidavit evidence, none the less it is clear that through 1990 and 1991 steps were taken to transfer all the shares in Genan to the defendant and a number of other assets including five or six companies in South Africa and one in Hong Kong to the plaintiff. I shall have to look at those arrangements in greater detail later in the judgment. In essence, however, over those two years the defendant says a complete settlement was reached, whereas the plaintiff says that he was unfairly and unconscionably manipulated by the defendant, resulting in the defendant ending up in control of far more than 50 per cent of his half-share interest in the enterprises which they had built up together.
Of particular importance in this case is a document that was signed in
Randburg, South Africa on 18 January 1991, cl 7 of which reads:
7. Any dispute between the parties shall be determined according to South African law in the Republic of South Africa and each party elects as his ‘domicilium citandi et executandi’ for all purposes the address recorded in the preamble hereto.
It is, of course, that clause upon which the defendant relies substantially in seeking a stay of these proceedings in the New Zealand Courts. (p 326-327)
[11] Smellie J then turned to a brief consideration of credibility issues. The parties had found it necessary to file affidavits in which each made a number of claims against the other which, if true, would suggest that the party concerned had resorted to improper behaviour in the conduct of his business generally and in relation to the dispute between the parties in particular.
[12] Prior to the hearing before Smellie J the plaintiff sought an order that the defendant, and some other deponents of affidavits sworn in support of the application for stay, should be available for cross-examination. That application was refused in this Court and the refusal was upheld by the Court of Appeal. In the light of that, quite understandably, Smellie J observed that he was unable to reach conclusions on issues of conduct and credibility, despite being urged to do so by counsel and simply noted that such findings would need to await a substantive hearing. He further noted that those issues were of limited significance to the issues he was required to decide on the application for stay.
[13] Likewise here the allegations of the parties one against the other are of limited relevance, save that the plaintiff now says the defendant in his conduct of the South African litigation has demonstrated his desire to litigate in South Africa to be
less than genuine. If that allegation were correct then that would be a matter to be taken into account in the current application.
[14] Having dealt with conduct and credibility issues, Smellie J then moved to a detailed consideration of the plaintiff’s statement of claim in the proceeding. Eight causes of action were pleaded. They are extensively reviewed by the Judge who commented that if the matter were to proceed in New Zealand then an extensive review and probable amendment of the statement of claim would be required. That is accepted for the plaintiff in the present proceeding, who has indicated that there would be considerable amendment of the plaintiff’s pleading in the event that the order for stay was lifted.
[15] For the purposes of the present application, it is unnecessary that the Court be made aware of the precise causes of action which might be in the plaintiff’s contemplation. Plainly enough, the proceeding is aimed at the division of the assets of the parties’ various business ventures in a manner which the plaintiff believes to be commercially and legally fair.
[16] In the next section of his judgment, Smellie J sets out and comments upon certain details of documents entered into by the parties by way of resolution (or as the plaintiff would have it partial resolution) of the dispute. Again, it is convenient to set out the lengthy passage in His Honour’s judgment in which the documents are discussed. The documents concerned remain at the heart of the litigation between the parties, and as will be seen, are the focus of recent events in the South African High Court.
[17] The relevant section of Smellie J’s judgment reads:
The documents the defendant relies upon
My purpose in this section of the judgment is primarily to identify and describe the documents relied upon, while at the same time recording the declared positions of the parties in respect of them as to authenticity and/or completeness.
The first is an agreement of 21 February 1990 which is Exhibit A to van Heeren’s first affidavit. It is between the plaintiff and defendant and contains three short paragraphs. It is signed by both parties and Kidd expressly acknowledges his signature to it. The first clause states that as from the date
of the document the parties “shall cease to be partners in the company of Genan Trading Company NV”. The second states that van Heeren will pay Kidd the sum of US$3m “in full and final payment of all Kidd’s shares in Genan”. Kidd’s position is that the US$m3 which is acknowledged to be in van Heeren’s handwriting was inserted after signature, without his approval, and does not represent the agreed consideration.
The third clause is an acknowledgment by Kidd that van Heeren takes Genan completely, that he, Kidd, is owed no further moneys by Genan, and that he will immediately execute a transfer of “all shares he owns in Genan in favour of van Heeren or his nominee”.
The next document is the share transfer agreement signed by both parties, on the same day as Exhibit A, the authenticity and completeness of which is not challenged. It is Exhibit B of van Heeren’s first affidavit.
The third document is again between the plaintiff and defendant and is dated
25 September 1990. It contains four clauses. The first provides a full and final settlement of all obligations so far as Kidd is concerned. The second acknowledges that “no shares are held in each other’s companies worldwide”. The third covers a transfer of shares held by Genan Trading in Jocrow (Steel) Ltd to a third company, Bramlin Ltd of Hong Kong, subsequently acquired by Kidd for a nominal consideration. The fourth reads:
Finally the parties hereto acknowledge that this Deed is in full and final settlement of all matters currently outstanding between them including all other companies or trusts controlled by them.
In respect of this agreement Mr Young QC acknowledged on behalf of van Heeren that it was not the final document, that there were still loose ends that had to be tidied up. That document is Exhibit C of van Heeren’s first affidavit.
We then come to the two documents that were executed at Randburg on 18
January 1991. The first is a memorandum of agreement entered into between van Heeren as the “Seller” and Kidd as the “Purchaser”. For a nominal consideration the seller transfers to the purchaser all the shares held by the seller in five companies in South Africa including Galaxy and Bramlin, the Hong Kong company referred to above.
In cl 2 of the agreement it is specifically recorded that the agreement of 25
September 1990 (discussed immediately above) “is still valid and is
incorporated herein”. The final clause, no 5, commits the parties to determine any disputes according to South African law in the Republic of South Africa. Kidd acknowledges the authenticity and effectiveness of that particular agreement.
The second document signed on 18 January 1991 in Randburg is described as an “Indemnity”. Mr Young described this document as the “central feature of the case”. The terms of it are set out hereunder:
WHEREAS VAN HEEREN and KIDD have this day entered into an agreement terminating their business relationships.
NOW THEREFORE:
1. KIDD hereby indemnifies VAN HEEREN against all claims which KIDD or any company, of which VAN HEEREN was previously a shareholder, might have against VAN HEEREN.
2. Beyond thus stated in paragraph 1 above neither party shall have any claim of any nature whatsoever against the other, neither shall any company of which either is a shareholder, director, employee, or has any other interest, have any such claim, and each shall take all such steps as may be possible in order to ensure that no action is instituted.
3. The parties agree that the moneys paid by KIDD to VAN HEEREN in respect of the sale of VAN HEEREN’s shareholdings shall constitute a settlement of all disputes between the parties anywhere in the world and shall furthermore be in full and final settlement of all claims which either party may have against the other, and in full and final settlement of all claims which any company in which either party is directly or indirectly involved may have against the other or against any company in which the other may directly or indirectly be involved.
4. Each settlement contained herein is severable from the remainder.
5. It is expressly agreed that the parties have no further shareholdings in any companies or trusts and if it should occur that there is such company or trust such company or trust will be transferred to VAN HEEREN at a price of R1,00 (ONE RAND).
6. This document will be binding on the parties in relation to any company, shareholding or other business in which the parties are directly or indirectly involved anywhere in the world.
7. Any dispute between the parties shall be determined according to South African law in the Republic of South Africa and each party elects as his ‘domicilium citandi et executandi’ for all purposes the address recorded in the preamble hereto.
While not disputing authenticity of his signature on this document, Kidd claims not to be bound by it on a whole range of grounds. Among them, fraud, misrepresentation, duress, mistake, and signature obtained under false pretences.
It is, of course, the seventh clause that van Heeren relies upon in seeking the stay. Inescapably that clause raises immediately the issue of whether, the parties having apparently so agreed, all their disputes should be resolved in South Africa according to the law of the Republic of South Africa. (p330-
331)
[18] Smellie J dealt only briefly with the law governing the circumstances in which it is proper to grant a stay upon the ground of an agreement to refer disputes to
a foreign court. That was because counsel before him were in agreement that the law as set out in The Eleftheria [1969] 2 All ER 641 applied. In his judgment (at p 332) His Honour reproduced the following passage from the judgment of Brandon J in The Eleftheria (p 645):
The principles established by the authorities can, I think, be summarised as follows: (I) Where plaintiffs sue in England in breach of an agreement to refer disputes to a foreign court, and the defendants apply for a stay, the English court, assuming the claim to be otherwise within its jurisdiction, is not bound to grant a stay but has a discretion, whether to do so or not. (II) the discretion should be exercised by granting a stay unless strong cause for not doing so is shown. (III) The burden of proving such strong cause is on the plaintiffs. (IV) In exercising its discretion, the court should take into account all the circumstances of the particular case. (V) In particular, but without prejudice to (IV), the following matters, where they arise, may properly be regarded: (a) In what country the evidence on the issues of fact is situated, or more readily available, and the effect of that on the relative convenience and expense of trial as between the English and foreign courts; (b) Whether the law of the foreign court applies and, if so, whether it differs from English law in any material respects; (c) With what country either party is connected, and how closely; (d) Whether the defendants genuinely desire trial in the foreign country, or are only seeking procedural advantages; (e) Whether the plaintiffs would be prejudiced by having to sue in the foreign court because they would – (i) be deprived of security for that claim, (ii) be unable to enforce any judgment obtained, (iii) be faced with a time-bar not applicable in England, or (iv) for political, racial, religious or other reasons be unlikely to get a fair trial.
[19] Smellie J also referred to the observation of Richardson J in Society of
Lloyd’s & Oxford Members’ Agency Limited v Hyslop [1993] 3 NZLR 135, 142:
The existence of an exclusive jurisdiction clause places a heavy burden on the parties seeking to oppose the clause. While the Court has a discretion, a stay should be granted unless strong cause for not doing so is shown by the plaintiff.
Those authorities are equally relevant to the present application.
[20] Having dealt with and rejected certain arguments advanced to him on behalf of the plaintiff (not relevant to the present application) Smellie J moved to matters related to the exercise of his discretion. He commenced by reminding himself of the non-exhaustive list of discretionary factors set out in the Eleftheria and of the importance of keeping in mind the requirement that the plaintiff was obliged to “show strong cause why the jurisdiction agreement should not be decisive” (p 335 l 25). He then proceeded to discuss “more or less in order of weight and
significance” the circumstances which he believed might arguably weigh in the plaintiff’s favour. First he referred to the fact that the defendant had little connection with South Africa, save for the existence of a home and a company there. He observed that neither party resided in South Africa nor had a South African domicile, and that although the plaintiff still had company interests there, the companies concerned were not asset rich, or involved in the dispute in the proceeding. In short, he held “the dispute is only connected with South Africa by the jurisdiction clause and the fact it was entered into there – nothing else”.
[21] The second factor was the possibility that the South African Courts might decline jurisdiction. In reviewing that aspect he discussed in considerable detail the voluminous opinion evidence appearing in affidavits filed by South African legal experts, noting that the expert evidence did not specifically address what the position would be if the South African Courts were simply asked to consider the validity of the indemnity as a preliminary issue.
[22] The third factor Smellie J considered was the relative ease of execution of the judgment obtained. He thought it likely any monetary judgment obtained by the plaintiff in South Africa would prove difficult to enforce against the defendant outside South Africa having regard to the defendant’s background – Smellie J regarded him as a “truly international entrepreneur” and expected him to be “a determined litigant”.
[23] By contrast, Smellie J thought that assets in New Zealand would be susceptible to a preservation order before trial, and could be rendered readily available to satisfy any judgment ultimately obtained in this jurisdiction.
[24] As a fourth factor His Honour considered the question of the degree to which it would be necessary to have regard to foreign law. By reason of the truly international character of the business of the parties he thought that wherever the plaintiff’s claims were heard, it would be necessary to apply foreign law to some considerable degree.
[25] Finally, His Honour referred to the strong connections each party had at that time with New Zealand, although by the time of the judgment, the plaintiff lived permanently in the United Kingdom and the defendant lived primarily outside New Zealand.
[26] Those were the primary factors considered, although Smellie J also had regard to the question of whether the defendant was genuine in his desire to have the case heard in South Africa, and whether in any event, the law of prescription (equivalent to the law of limitation) as it applies in South Africa might not be fatal to the plaintiff’s claims. In respect of this latter factor, it seems that although in 1997 the plaintiff’s claims on the merits were not statute barred in South Africa, they are now.
[27] It appears therefore to follow that even if the plaintiff must resolve the question of the true meaning and application of the so-called Randburg documents (executed on 18 January 1991) in South Africa, nevertheless he must return to this Court in this present proceeding for the determination on the merits of his claim against the defendant, in the event that the Randburg documents do not operate to preclude that course. That is a matter to which I will return later in this judgment.
[28] Having weighed the factors outline above, Smellie J concluded that the question of the validity of the indemnity ought to be determined in the South African Courts as a preliminary issue. The pivotal passage of his judgment reads:
Having considered the matters discussed above the issue now is whether any or all of the aspects which favour Kidd, taken jointly or severally, are sufficient to displace the strong presumption in favour of the jurisdiction clause. After careful consideration I conclude, by a not over-large margin, that they are not. The inescapable feature of the case is that there is an indemnity which, if upheld, will be conclusive of the outcome in van Heeren’s favour or, at least, largely so. And the validity of that indemnity, as is acknowledged by the plaintiff – even if the case stays in New Zealand – must be decided according to South African law. Because it is so pivotal and the witnesses in relation to its validity are as readily available in South Africa as New Zealand, whether it binds or not should be decided in the South African Courts if they will accept jurisdiction. As earlier mentioned the expert evidence did not specifically address what the position would be if the South African Courts are asked to consider the validity of the indemnity as a preliminary issue. [p 341]
[29] The terms of the order made by Smellie J were as follows:
There will be a stay of this action until further order of the Court, or until it is established either that the South African Courts decline jurisdiction to declare the validity and scope of the indemnity signed at Randburg on 18
January 1991 (Exhibit E of van Heeren’s affidavit of 8 October 1996), or otherwise uphold the plaintiff’s challenge to it. Leave is reserved to either party to apply on 21 days’ notice. [p 342]
[30] His Honour very briefly considered the forum non conveniens argument, and held that on balance it failed. He observed that:
The strongest features favouring the litigation remaining in New Zealand are the uncertainty as to whether the South African Courts will accept jurisdiction and if the plaintiff succeeds, execution would have to be effected other than in South Africa and, at least in part, in New Zealand. [p 343]
[31] He further noted that the stay granted by him left the door open for the case to proceed in New Zealand, which in his view, the submission to South African law aside, was the more appropriate forum.
The South African proceedings
[32] On 9 November 1998, the plaintiff instituted proceedings in the High Court of South Africa at Johannesburg, in which he sought an order:
Declaring the indemnity to relate only to claims arising between the parties in respect of the sale by the defendant to the plaintiff of the defendant’s shareholding in the companies referred to in annexure K2, concluded between the parties immediately prior to the signing of the indemnity, or alternatively declaring the indemnity to be void, alternatively voidable, and avoided, and of no legal force and effect.
[33] Thereafter the plaintiff amended his claim by introducing a claim (claim A) asking the Court to decline to exercise its jurisdiction to hear the proceeding. The balance of the claim in the South African proceedings is by way of alternative to claim A, which, if upheld, would result in the proceeding being struck out.
[34] The alternative claims are known as claims B1-B4 respectively, claim C and claim D. Claim B1 is based upon the proper construction of the indemnity; claim
B2 is based upon common mistake; claim B3 is based on justus error, and claim B4 is based upon an alleged misrepresentation by the defendant.
[35] Claim C is pleaded in the alternative to both claim A and claims B1-B4. In claim C the plaintiff seeks an order declaring that there must be excluded from the subject matter of the indemnity certain claims in respect of particular entities, immovable and movable property.
[36] Claim D is likewise pleaded in the alternative. There the plaintiff seeks rectification of the indemnity.
[37] Claim A, which essentially incorporates the preliminary jurisdictional issue contemplated by Smellie J in his order, came on for hearing in the High Court of South Africa in March 2004 before Joffe J. In a reserved judgment delivered on
25 June 2004, His Honour rejected claim A, thereby holding that the High Court of South Africa did have jurisdiction to consider matters going to the meaning, effect and application of the Randburg documents. In his judgment Joffe J rejected arguments:
a) That the doctrine of lis alibi pendens applied. He held that although there were two pending proceedings, one in this Court and one in South Africa, the relief claimed in each was different and that the effect of the order for stay granted in this proceeding was to excise from the ambit of the issues to be determined before the New Zealand Court those matters relating to the validity and scope of the indemnity which were before the High Court of South Africa.
b) That the defendant’s conduct constituted an abuse of the process of the Court, and that such abuse entitled the Court to intervene by declining to exercise jurisdiction. That argument was based upon a step taken by the defendant in response to claim C, in respect of which the defendant sought a stay of proceeding on the ground that the issue ought to be determined in New Zealand. That argument was rejected by Joffe J, first on the ground that abuse of process had not
been pleaded, but also upon the basis that the defendant’s conduct in the High Court of South Africa was not inconsistent with his conduct in the New Zealand proceeding, and did not amount to abuse of process.
c) Based on forum non conveniens, on the ground that the doctrine did not form part of the law of South Africa.
[38] It therefore remains for the High Court of South Africa to embark upon a consideration of claims B, C and D. These claims, as I have indicated, go to the effect of the Randburg documents, and in particular the issue of whether there has been a settlement between the parties, such as precludes a further inquiry as to the proper division of assets between them.
[39] The present application was filed subsequent to delivery of the judgment of the High Court of South Africa from which no appeal has been filed.
Change of circumstance: legal principle
[40] The present application is brought upon the basis that there has been such a change of circumstance that the stay ought now to be lifted. The applicant also argues that the conduct of the defendant in the South African proceedings amounts to an abuse of process of such seriousness as to justify of itself the lifting of the stay. I prefer to take account of the abuse of process point as part and parcel of the change of circumstance argument.
[41] As Mr O’Callahan for the plaintiff points out, there is little authority as to the circumstances in which it would be proper for the Court to lift a stay of proceeding. That is perhaps not surprising having regard to the wide variety of circumstances in which a Court might be asked to lift an order for stay, with the result that judgments of the Court on the point will be heavily fact specific. There is no doubt that the Court does have jurisdiction to lift a stay in an appropriate case.
[42] As to general principle, Halsbury’s Laws of England (4th ed re-issue V.37 para 927) observes that:
A stay of proceedings is not the equivalent of a judgment or of a discontinuance, and may be removed if proper grounds are shown, even if the stay is imposed by a consent order. In contrast with a judgment for the defendant or the dismissal or continuance of a claim, in the case of a stay of proceedings, whether conditional or absolute, the claim still subsists; it is still ‘pending’, and the stay is therefore always potentially capable of being removed.
A stay may be removed if good cause or proper grounds are shown or the continuance of the stay could cause or produce injustice or prejudice or where there has been a change in the law.
[43] To the same general effect is Jaffey on the Conflict of Laws (1997) p 106:
Whereas declining jurisdiction is a definitive step which brings the proceedings to a close, a stay merely places the proceedings on hold. In practice, it will normally make little difference whether the Court stays proceedings or declines jurisdiction; while the stay is maintained the proceedings cannot continue. There are, however, situations in which the Court may be justified in lifting a stay. Where, for example, English proceedings are stayed on the basis that there is another more appropriate forum abroad, if it subsequently transpires that the plaintiff’s claim cannot be heard in the foreign forum the Court may lift a stay to enable the plaintiff to pursue his claim in England.
[44] In Ghose v Ghose (1997) 12 PRNZ 149, Paterson J stayed matrimonial property proceedings in New Zealand on the ground that New Zealand was not the appropriate forum. In doing so, he noted that a change of circumstance might justify the lifting of the order for stay (at p 157):
I am therefore prepared to stay these proceedings. However, the stay should not necessarily be permanent. If for any reason it is not possible to resolve all the outstanding issues between the parties in Wales, or if there is a change of circumstances which makes it more appropriate for the matter to be resolved in this country, then either party should have the right to apply to this Court to revoke the stay. A revocation however, is unlikely to be considered unless circumstances arise after the date of this judgment which make it appropriate to revoke the stay.
[45] Mr Hodson submits that because the exercise by Smellie J of his discretion followed a detailed examination of the five factors discussed earlier in this judgment, it follows that the change in circumstance relied upon by the plaintiff must either relate to those factors, or outweigh them. There is some validity in that approach although if it is thereby suggested that an entirely new factor may be taken into
account only if of itself it outweighs the matters considered by Smellie J, then I
would disagree with Mr Hodson.
[46] In my view, I am entitled to take into account all of the relevant circumstances as they currently exist, and to reach a conclusion afresh. But in doing so I bear in mind two considerations. The first is that Smellie J concluded that it was appropriate to order a stay “by a not over-large margin” so that it might be thought that in his mind the plaintiff fell not far short of establishing grounds for refusing the stay.
[47] As against that, there is the consideration that Smellie J did order a stay and that the plaintiff chose not to appeal his judgment. To order that the stay be lifted now on the basis that there have been relatively minor changes of circumstance would be, in effect, to review the exercise of the original discretion. That I am not permitted to do. The change of circumstance which the plaintiff must establish ought to be real and palpable. In the light of the changed circumstances there ought to be a clear and strong case for uplifting the stay before the Court can properly intervene. The present application must not be viewed as a vehicle which simply permits the plaintiff to revisit before me a discretionary decision already taken by Smellie J.
[48] It must also be the case that I must take into account not only those factors relied upon by the plaintiff, but any countervailing factors which have arisen since the stay was granted in 1997. It is the present circumstances in their totality which must be examined, not only those on which the plaintiff expressly relies.
Change of circumstance: the plaintiff’s case
[49] The plaintiff relies on four alleged changes of circumstance which, taken together, are claimed to justify the lifting of the current stay. Those are:
a) The scope of the evidence which will need to be called in South Africa in order to determine the scope and validity of the Randburg documents, it being said that the numbers of witnesses now required
is much greater than was envisaged by the parties, or by Smellie J, at the time of the 1997 judgment;
b) The fact that the defendant denies in the South African proceedings that there ever existed a partnership between the parties;
c) By reason of a settlement entered into between the defendant and Mr Cooper, the defendant is now precluded from raising against Mr Cooper any matters relevant to Mr Cooper’s conduct, of which the defendant was formerly critical in affidavits filed in this Court. It is argued in consequence that while the defendant was formerly free to allege that Mr Cooper, and his principal the plaintiff, were simply engaging in a campaign of extortion against the defendant, the defendant is now precluded from doing that, so that a “feature of the defendant’s allegations has fallen away”.
d)The defendant, having persuaded Smellie J to grant a stay in order to give effect to the exclusive jurisdiction clause contained in the settlement documents, has now demonstrated, so the plaintiff claims, that his reliance on that clause goes only so far as he perceives tactical advantages might flow from it. The plaintiff relevantly relies upon the defendant’s apparent change of stance in respect of his pleading to claim C in the South African proceedings where he first filed a special plea in that Court, seeking a stay of proceedings in respect of claim C pending the determination of the New Zealand Court. Subsequently, and following the judgment of the High Court of South Africa, he withdrew the special plea. This is claimed by the plaintiff to amount not only to a relevant change of circumstance, but also to an abuse of process. I prefer to deal with this issue as one of a number of changes of circumstance which must be considered and weighed.
[50] As to the first of these points the plaintiff says that the defendant’s position before Smellie J, and indeed in the early stages of the hearing before Joffe J in the High Court of South Africa, was that the evidence required to determine the validity
of challenges to the Randburg documents would be very limited, in the sense that only a handful of witnesses would be needed. But as the argument proceeded before Joffe J, counsel for the defendant conceded that it might well be necessary to call a substantial number of witnesses for that purpose, including as many as 15 from New Zealand. The plaintiff contends that he never intended to sign away his alleged claim to assets of up to US$15 million, in return for a mere fraction of that figure. Therefore it might well be necessary to traverse the extent and value of the assets said to be in issue in order to put the Court in a position from which it could test the likelihood of a party foregoing a benefit of the order claimed by the plaintiff.
[51] To put the matter rather more shortly, the plaintiff says he is entitled to assets of the order of US$15 million. He has received only a small fraction of that figure. Had he known the effect of the Randburg documents was to preclude him from making any further claim he would never have signed them. Such a claim would have greater or less validity, according to the true value of the assets to which he lays claim. To establish the identity and value of those assets it may be necessary to call a significant number of witnesses.
[52] I do not regard this consideration as amounting to a significant change of circumstance. It may well be that before Smellie J an assumption was made that the number of witnesses concerned would be relatively small, although there is no reference in His Honour’s decision to that issue, and it does not appear among the factors to which he had particular regard. On analysis, it seems that the parties may originally have been somewhat optimistic as to the scale of the argument relevant to the Randburg documents and the number of witnesses needed to deal with it.
[53] To that extent, the South African proceeding has become somewhat more complex than might originally have been envisaged. But that factor does not suggest that this Court ought to revisit His Honour’s earlier discretion. Smellie J determined that the South African Courts needed to hear the issue of the scope of the indemnity. The fact that such an exercise will be rather more complex and wider ranging than was anticipated is not a relevant change of circumstance of such significance as to justify, of itself, lifting the stay.
[54] The second ground relied upon by the plaintiff is the fact that in the South African proceeding the defendant denies there ever was a partnership between the parties. That cannot amount to a relevant change of circumstance. Mr Hodson is right when he submits that the true nature of the relationship between the parties would inevitably be put in issue when the merits came to be debated. It is expected in litigation such as this that the arguments of the parties will develop and alter as time goes on. The defendant’s denial of partnership is not a relevant factor. It is most unlikely to have been weighed in the balance by Smellie J.
[55] The third factor relied upon arises from the settlement of their differences between Mr Cooper and the defendant. The plaintiff says that certain claims may no longer be made against him by the defendant if they relate to the acts or omissions of Mr Cooper on the plaintiff’s behalf. These claims are said by the plaintiff to include the defendant’s contention that the plaintiff’s current litigation is simply an exercise in extortion.
[56] There must be a question as to whether the settlement between the defendant and Mr Cooper, the terms of which are not before the Court, necessarily restricts the defendant in his allegations against the plaintiff. Be that as it may, I share the view expressed by Smellie J at p 328 of his judgment to the effect that conduct and credibility issues “must await a substantive hearing of this matter… they are, in my view, of limited significance to the issues that I must decide on this application”. It is difficult to accord this aspect of the plaintiff’s application any real weight at all.
[57] The fourth factor advanced by the plaintiff goes to the bona fides of the defendant in his claim to reliance upon the jurisdiction clause in the Randburg documents, which reliance has resulted in the present stay. One of the considerations taken into account in the Eleftheria (p 645) is “whether the defendants genuinely desire trial in a foreign country, or are only seeking procedural advantages”.
[58] As earlier recorded, the defendant’s lawyers entered a special plea in the South African proceedings, to claim C. If upheld, the effect of the special plea would have been to lead to the High Court of South Africa declining jurisdiction to
deal with an aspect of the claim in the South African Court, on the footing that the relevant issue is properly subject to the jurisdiction of this Court. The plaintiff says such a plea is simply inconsistent with the stance adopted by the defendant before Smellie J, and the subsequent withdrawal of the special plea strongly suggests in the first place it was filed only for tactical reasons associated with the conduct of the South African litigation. In essence, the argument is that the way in which the special plea was deployed in South Africa is evidence that the defendant is trifling with the Courts and is intent upon giving the plaintiff the run-around.
[59] The plaintiff’s South African attorney, Mr Alp, has sworn an affidavit in which he expresses grave concern at the defendant’s behaviour, and suggests the filing and subsequent withdrawal of the special plea is indicative of bad faith on the part of the defendant.
[60] The defendant’s South African attorney, Mr Sinclair, has filed an affidavit in response in which he points out the plaintiff has himself introduced into the South African proceedings issues for adjudication by the High Court of South Africa which were not contemplated by Smellie J. These include the application for rectification of the indemnity. Mr Sinclair deposes that the withdrawal of the special plea arose because the defendant’s legal advisers in South Africa considered it was essential “to bring an end to this interminable litigation”.
[61] In other words, the plaintiff having, in the defendant’s view, deliberately widened the scope of the South African litigation, there was limited value in taking a stance as to jurisdiction which was initially aimed at restricting in South Africa the scope of the issues for determination there.
[62] While arguing that this state of affairs constitutes a relevant change of circumstance, Mr O’Callahan also contends that the filing and later withdrawal of the defendant’s special plea amounts to an abuse of process which of itself justifies the lifting of the stay.
[63] The plaintiff submits that the defendant’s conduct “… must mean that the defendant believed he was entitled to choose the extent to which he sought to rely on the exclusive jurisdiction clause”.
[64] In response, the defendant points to the passage in the judgment of Joffe J in which he held that the defendant’s conduct in relation to the filing of the special plea was not necessarily inconsistent with his conduct in the New Zealand Court, and that that finding amounted to a vindication of the defendant’s stance.
[65] Mr Hodson submits that the defendant’s subsequent withdrawal of the special plea was undertaken on legal advice as outlined by Mr Sinclair, and to accept the suggestion that the deployment of the special plea might amount to an abuse of process, or even to a relevant change of circumstance, would be to “fly in the face” of the judgment of Joffe J.
[66] The power to strike out pleadings as an abuse of process derives from the inherent jurisdiction of the Court: see r 186 which expressly preserves that jurisdiction. In Ullrich v Ullrich (1996) 10 PRNZ 253, 255, Master Venning (as he then was) adopted the analysis appearing in the judgment of the New South Wales Court of Appeal in Hanrahan v Ainsworth (1990) 22 NSWLR 73:
1. An action on the case for abuse of the process of the Court will lie where it has been proved that process ancillary to a principal claim for relief has been used to effect an object not within the scope of the process and damage has resulted;
2. Where the action lies it is not necessary to establish that the principal
proceedings have terminated;
3. The action will not lie where the claim is that a party has instituted proceedings, whether principal or ancillary, in order to effect an object within the scope of the proceedings. This is so even if the proceedings have been irregularly or maliciously instituted;
4. Similarly an action will not lie if it involves an assertion that a pending
proceeding is unjust;
5. Malicious prosecution is the relevant cause of action where the allegation is that a person has maliciously instituted proceedings without reasonable cause to effect a purpose within the object of the proceedings.
[67] Of course, any relevant abuse for present purposes must be an abuse of the process of this Court, not the High Court of South Africa. Where an abuse of process is established, the remedy is generally a stay. Here, the plaintiff argues that
the defendant’s reliance on his special plea amounts to an abuse of process and the stay should therefore be lifted. In essence, this is an argument for change of circumstance, and little is added to that argument by reference to the law on abuse of process.
[68] Nevertheless, I am unconvinced that the filing and subsequent withdrawal of the special plea amounts either to an abuse of process of the South African Court (it cannot amount to an abuse of process in this Court), or to a significant change of circumstance. The litigation both here and in the High Court of South Africa is complex, both substantively and procedurally. The defendant was no doubt acting on competent legal advice in taking the procedural steps concerned. On the face of it Mr Sinclair’s explanation appears reasonable despite the complaints of Mr Alp in his affidavit evidence, and the submission of Mr O’Callahan to the contrary.
[69] On the material available, I believe it is simply not possible to reach a determination which would, in effect, amount to a finding of bad faith on the defendant’s part, and accordingly I do not regard this factor as adding weight to the plaintiff’s argument for a relevant change of circumstance.
[70] The foregoing are the changes of circumstance relied upon by the plaintiff. There are however, other factors to which it is proper to give consideration. Some might be thought to favour a continuation of the stay, others to point the other way.
[71] I consider it appropriate to revisit the factors relied upon by Smellie J in
1997. Among his five factors, he noted first that neither party resided in South Africa, nor had a domicile there. Indeed, he concluded the dispute was connected with that country simply by virtue of the jurisdiction clause and the fact that the Randburg documents were entered into there.
[72] The position now is that the defendant has a residence in South Africa and while the plaintiff was formerly resident in the United Kingdom, it appears he also has a residence in South Africa. To that extent, the parties have a closer connection with South Africa than existed at the time of Smellie J’s judgment.
[73] Smellie J also referred to the possibility that the South African Courts might decline jurisdiction to entertain a challenge to the Randburg documents, and considered copious expert evidence on that topic. He made an order for stay despite the significant possibility on the evidence before him that the South African Courts might simply decline jurisdiction.
[74] That issue is now behind the parties. The effect of Joffe J’s judgment is that the High Court of South Africa will hear the plaintiff’s challenge to the validity of the Randburg documents. On that ground also there is a closer connection between the parties and the Courts of South Africa than was the case before Smellie J. There has been no appeal against the judgment of Joffe J.
[75] Smellie J took into account the fact that any judgment obtained by the plaintiff in South Africa would have to be executed in another jurisdiction. That remains the case. He likewise took account of the fact that irrespective of where the claims were heard, foreign law would be involved. That arises from the wide geographical spread of the assets in dispute. The position remains unchanged in that regard.
[76] Finally, Smellie J took account of the strong connections which the parties had with New Zealand at the time of the hearing before him. It now seems that the connection of the parties with New Zealand is relatively tenuous. There remain certain New Zealand assets, but New Zealand real estate has now been sold and there are fewer relevant New Zealand companies in existence than was formerly the case.
[77] Those were the factors taken into account by Smellie J. It is, however, proper additionally to take into account in an overall assessment, the practical realities associated with the existing South African litigation. The proceedings in South Africa have made considerable progress. The jurisdictional issue has now been cleared away so that the challenge to the Randburg documents can proceed in the High Court of South Africa, applying South African law, on its merits. That is a matter to be taken into account where a decision must be made between two jurisdictions: see Mackay Refined Sugars (NZ) v New Zealand Sugar Co Ltd [1997]
3 NZLR 476.
[78] If the stay is lifted the plaintiff proposes to discontinue, or to procure the dismissal of, the South African proceeding, and to take up the New Zealand proceeding instead. That would involve a determination by this Court of the challenge to the validity of the Randburg documents, according to South African law. That prospect does not immediately appeal as being in the best interests of the parties, having regard to the fact the South African proceedings must be rather substantially more advanced than is the case here, where a stay has been in force for the better part of eight years. The defendant ought not to be asked to turn its back on the South African litigation, and to start again in New Zealand, unless the clear weight of the relevant factors is in favour of adopting that course. Moreover, it is possible that the defendant might resist the termination of the South African proceedings, and it may be the High Court of South Africa will not necessarily assist the plaintiff in bringing the South African proceeding to an end. That is, however, a matter on which I did not hear argument.
[79] I do not overlook the fact that the merits of the dispute between the parties is incapable of litigation in South Africa, because the law of prescription there will prevent the plaintiff from mounting his case in that jurisdiction. Accordingly, any dispute on the merits will need to be determined in the present proceeding. However, any such dispute, on the face of it, will go to trial only in the event that the plaintiff succeeds in having the High Court of South Africa either set aside the Randburg documents, or ruling on their meaning and effect in such a way as to enable the plaintiff to pursue his case despite the apparent settlement reached between the parties.
[80] If the plaintiff succeeds in South Africa then the parties must move back to New Zealand in order to litigate the substance of their dispute. That was always a possibility at the time of the argument before Smellie J, although then the Court was advised that the doctrine of prescription in South Africa did not preclude an argument on the merits in that country. The position appears now to have changed, simply by reason of the effluxion of time. That being so, there has been a change of circumstance to the extent that it is now certain that, if the plaintiff successfully challenges the Randburg documents, the merits of the dispute must be litigated in
New Zealand, whereas at the time of the hearing before Smellie J there was at least a possibility that the merits could be litigated in South Africa.
[81] Accordingly, the inconvenience of arguing different aspects of the same case in two different jurisdictions is a matter to be taken broadly into account in assessing the extent to which circumstances have changed.
[82] There is one further matter requiring consideration. It stems from the possibility of issue estoppels arising in South Africa during the course of the plaintiff’s challenge to the Randburg documents. It now appears that relatively extensive evidence will need to be called in the High Court of South Africa as to the commercial matrix against which the Randburg documents were executed by the parties. In dealing with that evidence, the High Court of South Africa may well reach conclusions as to a number of factual matters such as, for example, the nature, extent and value of assets said to come within the purview of the parties’ joint commercial arrangements.
[83] It is said that difficulties may arise in this Court in the event that findings of fact are made in South Africa on topics of that sort, because an issue estoppel might arise between the parties, such that this Court, when determining the substance of the dispute, might be precluded from entertaining afresh arguments which either party may wish to run. That may well be so, but I do not think any undue difficulty arises thereby. If the whole of the proceeding is to be dealt with in this Court, then it is highly likely that the challenge to the Randburg documents would be dealt with here as a preliminary issue. In the course of the determination of that issue, it may well be that, just as in South Africa, the Court would find it necessary to make rulings which would operate thereafter as issue estoppels. The only difference between the two scenarios is that in the former case estoppels would arise in proceedings in the High Court of South Africa, whereas in the latter eventuality they would arise in this Court. I do not understand there to be any particular jurisdictional or practical difficulty which would suggest that it is therefore no longer appropriate that the High Court of South Africa be seized of the current proceeding there.
[84] Finally, it is necessary to consider the plaintiff’s argument that issues of cost and convenience weigh so heavily in the balance that Eleftheria principles point strongly to the cessation of the South African proceedings, and the resumption of the proceeding in its entirety in this Court. My attention was drawn to affidavit evidence which was to the effect that future costs in South Africa were likely to be of the order of NZ$600,000 on each side, and costs in New Zealand were likely to be at least of that order. I am not at all surprised at that. On any view, this is major litigation. Assets of considerable value are at stake.
[85] If the initial challenge occurs in South Africa and that is followed by a determination on the merits in this Court, then there will undoubtedly be a duplication of costs to some degree. But duplication arises as much from the fact that the substantive dispute is to be preceded by a challenge to the Randburg documents, as to the fact that parallel proceedings exist in two jurisdictions.
[86] While it is inevitable that there will be some duplication of costs by reason of the existence of proceedings in two jurisdictions, it is likely there will be a substantial level of duplication in any event if proceedings were restricted to this Court, and the challenge to the Randburg documents was argued here (as it inevitably would be) as a preliminary matter.
[87] I have no detailed evidence as to the likely costs comparison, and while I accept that the parties might, in terms of cost, be better off confining themselves to this Court, the extent of their financial advantage in taking that course is not before me. Some care is needed before giving this issue significant weight.
[88] Mr O’Callahan also referred to matters of convenience, and in particular to:
a) The necessity for a great number of witnesses to travel from New Zealand to South Africa for the hearing of the South African challenge to the Randburg documents;
b) The need to procure from New Zealand a significant quantity of documentary material, as opposed to the relatively simpler task, he
argued, of procuring what necessary documentation there is from
South Africa for hearing in a New Zealand proceeding;
c) The delay which would be compounded by the availability of appeals from any decision at first instance in the South African proceeding;
d)Prejudice inherent in having matters relitigated in New Zealand following findings of the High Court of South Africa.
[89] All these matters are entitled to a certain amount of weight, in the course of an overall assessment. To some extent they are to be balanced against the possibility (to use a deliberately neutral term), that the High Court of South Africa might simply uphold the Randburg documents, with the result that the dispute may never proceed to trial on the merits.
[90] I should say also that the delay factor referred to would seem to arise wherever the argument as to the Randburg documents took place and, accordingly, to constitute no more than a neutral consideration.
[91] I have carefully weighed all of the foregoing factors, and have come to the clear view there has not been such a change of circumstance as to justify an order lifting the stay granted by Smellie J in 1997. While there have been certain changes of circumstance which might operate in the plaintiff’s favour, other changes strongly point to the desirability of leaving the current proceeding in the High Court of South Africa, to be determined there according to the law of South Africa. That is what Smellie J envisaged. There has been no sufficient change of circumstance, in my view, to justify an order lifting the stay.
Mr Cooper’s affidavit
[92] In the light of the conclusions reached above, it is necessary to deal only briefly with Mr Hodson’s application to strike out, in whole or in part, the contents of the affidavit filed by Mr Cooper on behalf of the plaintiff. Mr Cooper is a private investigator who has been retained by the plaintiff since about 1994. In connection
with the present interlocutory application, he swore a long and detailed affidavit in which a good deal of the history of the dispute between the parties was canvassed, with particular reference to episodes which Mr Cooper contended bore adversely on Mr Van Heeren’s veracity and credibility.
[93] The defendant filed an interlocutory application seeking orders for removal from the file of, or alternatively, striking out certain passages in, Mr Cooper’s affidavit on the grounds that the impugned material was irrelevant, inadmissible and/or scandalous. The defendant relied on r 510 and the inherent jurisdiction of the Court.
[94] Rule 510(2) provides that the Court may refuse to read an affidavit which unnecessarily sets forth any argumentative matter. The Court in its inherent jurisdiction has a wide power to strike out affidavit material that is irrelevant, comprises secondary evidence, is simply opinion or hearsay evidence, amounts to argument or improperly adduces evidence of privileged communications: Donovan v Graham (1991) 4 PRNZ 311. The Court will not ordinarily direct that an affidavit be removed from the Court file unless it is scandalous and irrelevant, or oppressive or otherwise an abuse of the process of the Court: Cunningham v Takapuna Tramway and Ferry Co Ltd [1920] NZLR 137.
[95] Initially the defendant sought a separate and earlier hearing of the application to strike out Mr Cooper’s affidavit, but ultimately the application was directed to be heard along with the plaintiff’s application in respect of the stay.
[96] Where, as here, the application in respect of which the challenged affidavit was filed has proceeded to a hearing, there will often be an element of artificiality about an exercise aimed at determining whether an affidavit already read ought to be struck out in whole or in part. I agree with McGechan J in Donovan v Graham to the effect that the Court should not become buried in extensive interlocutory battles over evidential points of trivial importance. A pragmatic approach will often be the most appropriate.
[97] Mr Cooper’s affidavit was of limited assistance in my determination in respect of the stay. Mr O’Callahan submitted to me that questions of credibility could be assessed at this stage, at least on a preliminary basis, and weighed in the balance, in determining whether a stay ought to remain or not. However, I have found it rather more appropriate to consider a number of other factors which, weighed together, have led to my conclusion that the stay should remain.
[98] Moreover, credibility findings at this interlocutory stage would be difficult to reach with confidence, particularly in view of the fact there was no cross- examination on the affidavits.
[99] As Mr Cooper’s affidavit proved ultimately to be of little, if any, assistance, it is not necessary for the Court to engage in a detailed analysis in an endeavour to separate out that part of the affidavit which ought properly to be held inadmissible. Mr Hodson pointed out material which he said was simply argumentative in character. He said the impugned passages amounted to nothing more than a statement of the deponent’s belief which invited the Court to reach credibility findings in favour of the plaintiff over the defendant, or constituted opinion evidence in an area in which Mr Cooper was not qualified, or endeavoured to draw conclusions from matters of record which were for the Court to draw, and not the deponent.
[100] There was some force in Mr Hodson’s criticism, but I consider it unnecessary to engage in the exercise of formally striking out passages which might fail the test of admissibility, because I have been able to deal with the application in respect of the stay in reliance on other material. Where there may be further developments in the proceeding, generally it will be unwise to strike out an affidavit in whole or in part unless that course is plainly necessary in the circumstances of the individual case: Harrison v Banks (1997) 11 PRNZ 84 (CA).
[101] I therefore formally dismiss the defendant’s application in respect of
Mr Cooper’s affidavit but make no order as to costs.
Conclusion
[102] In the result, the plaintiff’s application for an order lifting the stay granted by
Smellie J on 22 October 1997 is dismissed.
[103] The defendant is entitled to costs. I will consider memoranda if the parties cannot agree.
C J Allan J
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