LMLW Limited v Armstrong Murray

[2017] NZHC 2000

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2017-485-614 [2017] NZHC 2000

BETWEEN

LMLW LIMITED

Plaintiff

AND

ARMSTRONG MURRAY Defendant

Hearing:	14 August 2017
Counsel:	C Stevens QC for the plaintiff S Ryland for the defendant
Date:	21 August 2017

JUDGMENT OF CULL J

[1]      LMLW  Ltd   (LMLW)  filed  an  interlocutory  application  for  summary judgment together with supporting affirmations in support.  The application is dated

28 July 2017 and was filed the same day.

[2]      Counsel for LMLW, Mr Stevens QC, requested the Registry to place this matter in the Judge’s Chambers on Monday 14 August 2017 for timetable directions. The reason given for the early call of this matter was Mr Steven’s unavailability between 2 and 20 October 2017.

[3]      Although a defendant has not less than 25 working days before the date of hearing of any application, to file a notice of opposition and affidavit three working days before the hearing, Counsel agreed to all but one timetabling direction.

The issue in dispute

[4]      Mr Stevens seeks a direction from the Court requiring the defendant to file a statement of defence within five weeks.  He submits that there is no prejudice to the

LMLW LIMITED v ARMSTRONG MURRAY [2017] NZHC 2000 [21 August 2017]

defendants in such a direction being made.   The defendant has filed a notice of opposition and an affidavit but has elected not to file a statement of defence.

[5]      Mr Stevens submits that the defendant has misquoted the wording of the undertaking; that there is no defence in the plaintiff’s view to its summary judgment application; and the defendant, being a firm of solicitors, should be required by the Court, in its inherent jurisdiction, to direct the defendant to file a statement of defence.   In making his submission, Mr Stevens acknowledged that there is no authority in support of his request.

[6]      Ms Ryland for the defendant opposes Mr Steven’s request, submitting that the defendant  has  complied  with  the High  Court Rules  2016  in filing its notice of opposition and affidavit in support.   She advised the Court that further affidavit evidence was to be filed and the defendant reserved its right to challenge the venue for hearing this matter.  The defendant has elected not to file a statement of defence, as it is entitled to do under the Rules.

[7]      Ms Ryland explained that the defendant was not ruling out filing a statement of defence but at this stage did not want to file a statement of defence.  Initially, the defendant was concerned that it may prejudice the defendant’s ability to seek a change of venue, if a defence was filed.  The plaintiff has said it would not take the point, that an application to change the venue cannot be made after the filing of the statement  of  defence.    Nevertheless,  Ms Ryland  submits  it  is  ultimately for  the defendant to make the election.

[8]      Mr Stevens confirmed that the plaintiff seeks a statement of defence for the purposes of the summary judgment hearing.  If the defendant wished to pursue the change of venue, the filing of a statement of defence would not be relied on by the plaintiff, as fatal to its venue application.

Discussion

[9]      Rule 12.10 of the High Court Rules provides:1

A defendant who has filed both a notice of opposition and an affidavit under rule 12.9 may, in addition, file a statement of defence …

[10]     The wording of the rule makes it clear that a defendant has an option of filing a statement of defence.  In some cases, a defendant will file a statement of defence as well as a notice of opposition and affidavit evidence, to demonstrate clearly the nature of the defence.

[11]     However,  I accept  the  defendant’s  submission  that  it  is  a matter for the defendant to elect whether to file a statement of defence before a summary judgment hearing.

[12]     In McGechan on Procedure, the authors reinforce the defendant’s option in

the following commentary:2

A statement of defence may help to crystallise the nature of the defence and therefore support the defendant’s claim that the matter should proceed to trial.   On the other hand, a defendant may prefer to argue the summary judgment application before putting a formal defence in, as it will then have some indication from the Court as to the way the matter is perceived.

[13]     There  appears  to  be  no  authority,  which  has  considered  the  Court’s jurisdiction to require a statement of defence, when r 12.10 provides the defendant with an option of filing a statement of defence.

[14]    Regardless of whether the matter involves a firm of solicitors and their undertaking, I do not consider this is a case where the Court should direct the defendant to file a statement of defence before the summary judgment application

hearing.

1      Emphasis added.

2      Andrew  Beck  and  others  McGechan  on  Procedure  (looseleaf  ed,  Thomson  Reuters)  at

[HR 12.10.01].

Result

[15]     I  decline  the  plaintiff’s  request  for  a  direction  that  the  defendant  file  a

statement of defence within five weeks.

[16]     I make the following timetabling directions by consent:

(a)     the defendant is to file and serve any remaining and further affidavits in

support of its opposition to the plaintiff ’s application by 25 August

2017;

(b)     the plaintiff is to file and serve any reply affidavits by 8 September

2017;

(c)     the plaintiff is to file and serve its submissions 10 working days prior to the hearing date;

(d)the defendant is to file and serve its submissions 5 working days before the hearing date; and

(e)     a half day fixture is to be allocated as soon as possible.

Cull J