Leeds v Richards

[2016] NZHC 2118

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000140 [2016] NZHC 2118

BETWEEN

MICHAEL THOMAS LEEDS AND

NICHOLAS STEWART WOOD Applicants

AND

MURRAY RICHARDS First Respondent

STEINDLE WILLIAMS LEGAL LIMITED

Second Respondent

Hearing:	1 September 2016
Appearances:	S Bisley for the Applicants The First Respondent by telephone in Person P Davey for the Second Respondent
Judgment:	7 September 2016

JUDGMENT OF HINTON J

This judgment was delivered by me on 7 September 2016 at 2.15 pm pursuant to Rule 11.5 of the High Court Rules

……………………………………………………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

S Bisley, Buddle Findlay, Wellington
P Davey, Barrister, Auckland

Party:

M Richards

LEEDS AND WOOD v RICHARDS [2016] NZHC 2118 [7 September 2016]

[1]      Mr Richards has applied to review three decisions of Associate Judge Bell. The first is a decision dated 3 June 2016 where Associate Judge Bell dismissed Mr Richards’ stay application and made pre-trial directions, including a direction that the second respondent, Steindle Williams Legal Ltd, file an affidavit.  The second two  decisions  are  both  timetabling  directions  relating  to  the  filing  date  of  the Steindle Williams affidavit.

Background

[2]      The background to these review applications is that Messrs Leeds and Wood (the English trustees) have brought an originating application, seeking that a bankruptcy  order  obtained  in  England  against  Mr  Richards,  be  recognised  in New Zealand,  and  seeking  an  order  that  they  can  obtain  information  from Steindle Williams (Mr Richards’ former solicitors) relevant to the bankruptcy.

[3]      The originating application is set down for hearing on 22 September 2016.

[4]      Mr  Richards,  who  is  an  Australian  resident,  applied  for  a  stay  of  the originating application on the grounds that an Australian court is a more appropriate forum.  In the judgment of 3 June 2016, Associate Judge Bell refused the stay and, inter alia, directed that Steindle Williams file and serve an affidavit setting out on what  matters  (if  any)  it  acted  for  Mr  Richards,  or  any entities  associated  with Mr Richards,  and  whether  it  holds  any  documents  relating  to  those  matters. Associate Judge Bell explained in a later Minute that his reason for making that direction was to ensure that, at the hearing of the originating application, the Court could mould any orders it might make with regard to specific files and records held by Steindle Williams.

[5]      Mr Richards did not attend the hearing of his own stay application, despite an adjournment   and   telephone   contact   being   made   available,   which   Associate Judge Bell records in his 3 June 2016 judgment.  Following receipt of the judgment, Mr Richards indicated that he intended to appeal.  In a Minute dated 10 June 2016, Associate Judge Bell explained the appropriate course was to apply for a review.

Mr Richards then wrote back to the Court indicating that he intended to review the judgment.  However, he did not file the application to review until 3 August 2016.

[6]      The two timetabling decisions arose because the 3 June 2016 direction that Steindle Williams  file  the  affidavit,  did  not  specify  a  date  for  filing  and  so Associate Judge Bell, in a Minute dated 1 August 2016, directed that it be filed by

19 August 2016.  On 3 August 2016, Mr Richards filed an application to review and stay that direction.  On 17 August 2016, Associate Judge Bell directed that, pending hearing of the 3 August application for review, Steindle Williams should still file and serve the affidavit on 19 August 2016.   An application was filed to review that decision as well, on 18 August 2016.

[7]      The three review applications were set down for hearing before me, on a priority basis, in the Duty Judge list on 24 August 2016, to allow time for a decision sufficiently in advance of the 22 September 2016 hearing of the originating application.  Mr Richards did not attend or arrange an appearance on 24 August.  He filed a memorandum asking for more time.  I adjourned the hearing to 2.15 pm on

1 September 2016, as recorded in a Minute dated 25 August 2016.  A teleconference was held at 9.00 am on 1 September 2016, in which I directed that Mr Richards could attend the hearing at 2.15 pm that day, by telephone.

[8]      In the morning of 1 September 2016, Mr Richards filed a memorandum, for the 2.15 pm hearing.

The review application relating to the 3 June 2016 decision and whether to extend time for filing

[9]      An application for review of a decision of an Associate Judge must be filed and served within five working days of notice of the decision being received.  Strict

compliance is required so that interlocutory matters can be disposed of promptly.1

1      Andrew  Beck  (ed)  McGechan  on  Procedure  (Thomson  Reuters,  online  looseleaf  ed)  at

[HR2.3.03].

[10]     Mr  Richards’ application  to  review  the  3  June  2016  decision,  was  filed approximately two months late, despite his being advised by Associate Judge Bell of the process, and directed to the relevant rule.

[11]    The Court has power to extend time, but needs to take account of the explanation for the delay; prejudice to other parties and the merits of the review application.

[12]     Mr Richards said the delay arose because five days is wholly inadequate for a trans-Tasman matter, and also referred to the fact that there was no date for filing the Steindle  Williams  affidavit.    However,  this  application  for  review  was  about two months out of time.  Also, in the absence of a filing date, the Steindle Williams affidavit was arguably due forthwith and, given the chronological order of the directions, at the latest by 15 July 2016.

[13]     There is prejudice to the English trustees resulting from the delay, because of the closeness of the substantive hearing.   There is certainly inconvenience to the Court, which had to accord this review application urgency because of the late application.

[14]     There also appears to be little merit overall to this application to review. First, the Associate Judge’s refusal to stay the substantive proceeding appears to be on very strong grounds.   It would make no sense for English trustees seeking to obtain documents and information from a New Zealand law firm, to file proceedings in Australia, as Mr Richards sought.  (Mr Richards, while by no means abandoning his argument about review of the stay decision, focused more particularly on the issue of the direction regarding the Steindle Williams affidavit.)

[15]     Secondly, there is little merit in that part of the application that relates to a review of the direction that Steindle Williams file and serve an affidavit.  This would seem to fit into the category of a timetabling direction, which Associate Judge Bell had jurisdiction to make under r 7.44.  The affidavit will only list relevant files.  It is not a list of documents.

[16]     During the hearing, Mr Richards said the three review applications could be resolved on the basis that he could not object, and would agree, to a sworn list of matters where he had provided personal instructions, being filed and made available now to the English trustees.  He proposed that a further sealed sworn list of matters where Steindle Williams was acting for any entities associated with him (he referred to the examples of being a trustee or a consultant) would be filed in court and not opened or handed to the English trustees, until the court had ruled on the originating application, which I said would be expected to occur at the 22 September hearing.

[17]     In discussion at the hearing, it was clear that Steindle Williams had prepared the required affidavit (as would be expected given the expired order and lack of stay).   Mr Davey advised there were eight matters in the “personal” category and eighteen in the “associated entities” category.

[18]     Mr Richards said he was concerned that third parties could be prejudiced by provision of the second list and that the English trustees could use the second list to his prejudice in their defence of a related £30 million claim brought against them.

[19]     I see no merit in those two points.  Further, I note the concern of the English trustees,  that  the  sealed  list  would  defeat  the  purpose  of  the  Steindle Williams direction.    Neither  the  court,  nor  the  English  trustees,  would  be  ready  to  fully consider the second part of the application being heard on 22 September 2016. The hearing of the originating application has already been extremely drawn out and complicated by the series of applications made by Mr Richards.

[20]     However, I have some concern that the Steindle Williams direction may (in a technical sense only) slightly pre-empt the originating application.

[21]     Further,   hopefully   the   English   trustees   will   be   able   to   address   the two affidavits on the day, to the extent that is in fact required.  If not, any residual matters should be able to be disposed of within days, as only brief further court time should be required.

[22]     I therefore have decided to grant an extension of time, and the applications to review, to the following extent only:

(a)       Steindle  Williams  is  to  file  and  serve  by  3.00  pm  on  Friday

9 September  2016,  an  affidavit  listing  matters  where  it  acted  for Mr Richards and as to whether it holds any documents relating to those matters.

(b)Steindle Williams is to file by 3.00 pm on Friday 9 September 2016, in a sealed envelope, an affidavit listing matters where it acted for entities associated with Mr Richards and as to whether it holds any documents relating to those matters.  The Judge at the 22 September

2016  hearing  shall  open  the  envelope  and  provide  a  copy of  the affidavit to counsel for the English trustees, immediately after a positive ruling on the originating application, with a view to final orders being made at that hearing, or as soon as possible thereafter.

(c)      The orders and directions made by Associate Judge Bell otherwise stand.

The  review  applications  relating  to  fixing  a  date  for the  Steindle Williams affidavit

[23]     The two applications to review the timetabling directions in relation to the

Steindle Williams affidavit are covered by the rulings I have made.

Transcripts

[24]     Mr Richards sought, in his 1 September 2016 memorandum, an order for a copy of all recordings of proceedings in this matter so he could use them in this hearing.  I explained that no transcripts were made of submissions (unless ordered, which is rare), so that was not possible.  I now note that in his memorandum, Mr Richards  suggested  that  this  hearing  be  adjourned  until  the  transcripts  were available.  He did not pursue that line at the hearing itself and participated fully and

capably in it.   Furthermore, I would certainly not have been prepared to allow an adjournment, nor do I see any basis to direct that transcripts be prepared.

Costs

[25]     There is no order as to costs.

Preservation of Steindle Williams files

[26]     I   was   not   asked   to   make   any   order   preserving   the   position   with Steindle Williams files.  I presume that matter has been addressed.  I certainly expect that the files will all be retained by Steindle Williams.

[27]     I expect Steindle Williams to take a fulsome and not technical approach to compliance with the order made against it.

-------------------------------------------------- Hinton  J