King v PFL Finance Limited

[2013] NZHC 902

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1734 [2013] NZHC 902

BETWEEN  THOMAS FREDERICK MAZLIN KING AND JUDITH RUTH KING AS PARTNERS OF THE TFM AND JR KING PARTNERSHIP

First Plaintiff

ANDHAVELOCK FARMS LIMITED AS TRUSTEE OF THE FOREBANK FARM TRUST

Second Plaintiff

ANDPFL FINANCE LIMITED First Defendant

ANDCRAIG BEECROFT Second Defendant

Hearing:         24 April 2013

Appearances: D G Chesterman for First Plaintiff

K M Quinn for Defendants

Judgment:      29 April 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 29 April 2013 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Holland Beckett, Tauranga:  [email protected]

Heimsath Alexander, Auckland:  [email protected]

Lowndes Jordan, Auckland:  [email protected] /  [email protected]

Counsel:            D G Chesterman, Auckland:  [email protected]

K M Quinn, Auckland:  [email protected]

B D Gustafson, Auckland:  [email protected]

KING V PFL FINANCE LIMITED HC AK CIV-2012-404-1734 [29 April 2013]

Introduction

[1]      The First Plaintiffs have applied to adjourn the trial of this matter, which otherwise is to have a three week fixture commencing on 10 June 2013.

[2]      The Defendants oppose an adjournment.

[3]      The Second Plaintiff is in receivership and liquidation and by memorandum dated 6 April 2013 the liquidator advised that he does not consent to continuation of the current action in so far as it concerns the Second Plaintiff and that he is not intending to take any part in the proceedings.  Accordingly, references below to “the Plaintiffs” are references to the First Plaintiffs.

[4]      The application is made pursuant to r 10.2 of the High Court Rules, which reads as follows:

10.2     Adjournment of trial

The court may, before or at the trial, if it is in the interests of justice, postpone or adjourn the trial for any time, to any place, and upon any terms it thinks just.

[5]      Counsel agree that it is necessary to consider the interests of all parties to determine if it is in the interests of justice to grant an adjournment.

Background

[6]      The Plaintiffs commenced these proceedings in March 2012.   On 21 June

2012 the parties were notified that the Court had allocated a fixture for two weeks to commence on 6 August 2012.  That fixture was allocated on the Plaintiffs’ request for an  urgent  fixture.    It  is  apparent  from  [3]  of the minute of Keane J  dated

15 June 2012  that  the  fixture  was  dependent  on  resolution  of  the  Plaintiffs’ application for a grant of legal aid.  It is apparent from [1] of the minute of Kós J dated 26 July 2012 that the priority fixture had to be vacated because the Plaintiffs’ application for legal aid had not been resolved in sufficient time.

[7]      The Court allocated another priority fixture for October 2012.   I adjourned that fixture shortly before it was due to start, for two reasons.  The Plaintiffs were in disarray.  Amongst other things they were seeking to serve briefs of evidence much later than their evidence was required to be served and only a matter of days before the trial was due to commence.  In addition, the number of witnesses proposed to be called meant that there was no prospect of completing the trial in the two weeks that the Court had allocated on the basis of the parties’ estimate.

[8]      By notice dated 22 November 2012 the parties were notified that the Court had allocated a three week fixture commencing 10 June 2013.

[9]      If the trial is adjourned, the next available period for a three week trial would be in or after April 2014.

Interests of the Plaintiffs

[10]     The grounds on which the Plaintiffs seek an adjournment may be summarised as follows.

[11]     To  have  any prospect  of  success  on  their  claims,  the  Plaintiffs  must  be represented at trial. To date they have been in receipt of legal aid.

[12]     In an affidavit sworn on 16 April 2013, Mr King, one of the Plaintiffs, gives evidence  that  the  relationship  between  the Plaintiffs and  their  former  solicitors, Carter & Partners, broke down in the last quarter of 2012.

[13]     On 20 December 2012 the Plaintiffs lodged a fresh application for a grant of legal aid to different legal advisers.

[14]     Legal Services Agency (“LSA”) has not yet advised whether or not it will make a further grant.  On the information before me, it appears that to date LSA has been willing only to provide funding sufficient to enable present counsel to supply information to LSA.   By letter dated 5 March 2013 (which counsel received on

8 March 2013), LSA asked counsel to provide an estimate of the time he required to review the Plaintiffs’ files and provide information to LSA.   By 25 March 2013,

counsel had received the Plaintiffs’ files from Carter & Partners, those files comprising 50 Eastlight folders and other documents.   Counsel then provided the estimate that LSA had requested on 28 March 2013.  On or about 8 April 2013 LSA advised that it would provide funding for counsel to review the files and advise LSA on particular matters.  Counsel expects to complete his review and advice to LSA by

3 May 2013.

[15]     The Plaintiffs rely on two other matters.   The first is that a witness the Plaintiffs consider important to their case is unavailable until late in the trial and a third party is taking proceedings to have Mr King adjudicated bankrupt.   Neither matter is significant in the context of this application.

Interests of the Defendant

[16]     I turn now to consider the Defendants’ interests.

[17]     The Plaintiffs seek substantial awards of damages from each Defendant.

[18]     The First Defendant advanced funds to the Second Plaintiff.  It has realised assets which have reduced the indebtedness but there remains a substantial shortfall.

[19]   The Second Defendant is a receiver.   The Plaintiffs have made serious allegations against him and he wishes to have the litigation resolved as soon as possible.   In an affidavit sworn on 19 April 2013, the Second Defendant refers to other personal reasons which make it desirable for him to have the litigation resolved as soon as possible.

[20]     Counsel also refers to the fact that the Defendants are adversely affected in other ways.  They have incurred and continue to incur legal and other costs.  They did recover some of their wasted expenditure in respect of the late adjournment of the October 2012 fixture from the Plaintiffs’ then legal advisers but I accept that they will be substantially out of pocket in terms of costs.  The intermittent interlocutory proceedings also incur cost.   The Defendants have not as yet recommenced preparation for the June 2013 fixture.

[21]     There is also the effect of delay on the trial itself.   Many of the important allegations   concern  discussions   between   the  parties  or  their  representatives. Although witnesses have given briefs of evidence, it is preferable that they give evidence as soon as possible.

[22]     Counsel for the Defendants submits that how the Plaintiffs fund their case is a matter for them, and likewise as to the internal procedures LSA adopts before it makes a decision on funding.  The Defendants should not be delayed or adversely affected by such matters.

Result

[23]     Balancing all of these matters I decline to grant the adjournment sought.  In my view, the interests of justice lie in maintaining the fixture, so that the claims brought against the Defendants are determined as soon as possible.  I consider that the Plaintiffs can still be ready for trial if the LSA makes a decision promptly after receipt of the advice from counsel referred to in [14] above.

[24]     A copy of this judgment is to be sent to LSA forthwith, for the attention of Mr Robin Lees who counsel for the Plaintiffs tells me is administering the Plaintiffs’ application for legal aid.  I hope that LSA will appreciate the urgency of determining whether or not a further grant will be made.   I am also forwarding a copy of this judgment to Winkelmann J, Chief High Court Judge, so that she is informed of the position.

[25]     Counsel for the Defendants may submit a memorandum on costs if he wishes. Any such memorandum should be filed and served by 4 pm, 6 May 2013.  Counsel for the Plaintiffs may file and serve a reply by 4 pm, 13 May 2013.

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M Peters J