Kroon v Westpac Banking Corporation HC Auckland Civ 2006-404-4720

[2007] NZHC 1638

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV- 2006-404-4720

CIV-2006-404-1970

IN THE MATTER OF     of the Insolvency Act 1967

BETWEEN  RICHARD GEORGE ANTHONY KROON

Judgment Debtor

AND  WESTPAC BANKING CORPORATION Judgment Creditor

AND

IN THE MATTER OF     the Insolvency Act 1967

IN THE MATTER:          RICHARD GEORGE ANTHONY KROON

Judgment Debtor

AND  AUCKLAND FINANCE LTD Judgment Creditor

Hearing:         19 February 2007

Appearances: Mr Dale for Judgment Debtor

Mr Allan for for Auckland Finance Limited

Mr Robinson for Westpac Banking Corporation

Judgment:      19 February 2007

(ORAL) RULING OF DOOGUE AJ

Grove Darlow & Partners, P O Box 2882, Auckland - by facsimile:  309 9877

Simpson Grierson, Private Bag 92518, Wellesley Street, Auckland - by facsimile:  307-0331
Hornabrook Macdonald – by facsimile: 353 7599

Counsel:

Mr P Dale - by facsimile:  362 0102

KROON V AUCKLAND FINANCE LIMITED AND KROON V WESTPAC BANKING CORPORATION HC AK   19 February 2007

[1]      There  were  two  matters  I   wish  to  record.     The  first   concerns  the circumstances that  have  intervened since this  matter  was adjourned.    When  the proceeding was called this morning I was informed that Ms Van Ryn for Westpac was not available because of an illness in her family.  Understandably she was not here given the nature of the problem that had arisen.

[2]      Mr Robinson, who has done some preparatory work on the proceedings, did not consider he would be able to proceed as counsel, and again,  his position is understandable.

[3]      Mr Allan for Auckland Finance Limited, was ready to proceed.   Mr Dale, however, considered he had difficulties in his way if Auckland Finance Limited proceeded in circumstances where he did not have the advantage of being able to cross-examine a witness for Westpac.

[4]      In my Minute at the last hearing where I confirmed with counsel that the proceedings were to proceed as separate proceedings, although they would be heard together.     There was some discussion about consolidation at one point, but the proceedings were not consolidated.  No applications had been given in the one set of proceedings for the Court to read the evidence in the other proceeding.  Mr Dale says that  counsel  came  to  an  agreement  which  was  something  rather  short  of  an agreement  of  consolidation  of  the  proceedings.    That  agreement  was  that  the affidavit that is of each proceeding would be available as evidence in the other.   I understand that Mr Allan accepts there was such an arrangement.

[5]      Mr  Dale  suggested  that  there  might  be  some  injustice  to  his  client  if  I proceeded to a final conclusion in the matter without hearing the evidence of cross- examination of the Westpac witness. I will defer until later how we will proceed when we get to the point where that cross-examination occurs.  But it seems to me that there is no reason why we cannot get underway with the Auckland Finance Limited matter. When we get to the end of hearing evidence at the end of that proceeding I will make a further determination whether it is necessary to postpone hearing submissions and/or making a decision in that proceeding.

[6]      A further difficulty has arisen which I suppose is quite unsurprising given the climate of tactical manoeuvring which seems to characterise these proceedings.  Mr Dale wishes to cross-examine an Auckland Finance Limited witness.  He has in

the interim sought to have documents produced by Auckland Finance Limited.   I think his objective was to persuade the solicitors for Auckland Finance Limited that the witness should bring those documents to Court and produce them.

[7]      There has been no order for discovery in this proceeding and that  is the starting point in the discussion.  It would not seem to be fair or just that Mr Kroon should be able to get round that position by adopting other means, such as calling for documents to be produced in cross-examination.  I would, however, suggest that the parties take a practical and reasonable approach to these matters.  If the witness has documents which are available then it seems to me only reasonable that they should be produced.

[8]      Mr  Allan  has  in  advance  of  the  cross-examination  of  his  witness  made objection to several foreshadowed subjects that Mr Dale intends to explore on cross- examination.    I  understand  his  point.    His  point  is  that  the  cross-examination proposes to range beyond matters that are relevant, with relevance defined by what has been stated to be the grounds of opposition that  Mr Kroon has filed to his adjudication.  I think these matters are matters of degree.  On the one hand, I, will not permit the cross-examination to become over-extended.  It cannot be used as a device to extend the hearing beyond the point where the time is available for the Court to hear the matter.  But subject to limits of reasonableness,   I think the best course is to let Mr Dale get on with his cross-examination and if and when the boundaries are crossed where it goes beyond what is reasonable or relevant then that should become readily apparent and orders can be made at that point, which are a very difficult issue to make rulings on in anticipation of the actual questions being asked.

[9]      I think we should just get underway and see if we can make some progress in finally resolving these proceedings.

J Doogue AJ