Madsen-Ries v Thompson

[2012] NZHC 790

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-007159 [2012] NZHC 790

UNDER  the Property Law Act 2007 and the

Companies Act 1993

IN THE MATTER OF     the liquidation of Kiwi House Limited (in liquidation)

BETWEEN  VIVIEN JUDITH MADSEN-RIES AND DAVID STUART VANCE

Plaintiffs

ANDJOLYON BRENDAN GEORDIE THOMPSON

First Defendant

ANDPHILIP IAN D'ATH Second Defendant

Hearing:         17 April 2012

Counsel:         NH Malarao for Plaintiffs

LFA Yaqub for First Defendant

Judgment:      17 April 2012

JUDGMENT (No 2) OF ASHER J

Solicitors/Counsel:

Meredith Connell, DX CP24063, Auckland 1140. Email:  [email protected]

Law & Associates, PO Box 76124, Manukau City. Email:  [email protected]

VIVIEN JUDITH MADSEN-RIES AND DAVID STUART VANCE V JOLYON BRENDAN GEORDIE THOMPSON HC AK CIV-2010-404-007159 [17 April 2012]

[1]      This  file  has  something  of  a  history  which  is  referred  to  in  my  recall judgment of 24 February 2012.   I have now had a telephone conference at the request of the plaintiff.

[2]      The consequence of that recall judgment is that the application for judgment by formal proof has to be determined afresh.  There had been affidavit evidence filed on 22 December 2011 asserting that a boarding pass relied on by Mr Thompson was a forgery.   I gave Mr Thompson an opportunity to reply to that evidence by 5pm,

9 March 2012.   I stated that the Registry should then organise a further telephone conference.

[3]      Mr Thompson did not file an affidavit.  However, his solicitor has out of time on 13 March 2012 filed two further affidavits of Messrs Goertz and Balmer, which I understand are intended to show that, rather than Mr Thompson being in Dunedin on

16 November 2010 (his original assertion), he was “out of town”.

[4]      Ms Yaqub has accepted that Mr Thompson was wrong when he said he was in Dunedin on 16 November 2010.  It was her oral submission that Mr Thompson would now assert that he was in Taupo on 16 November 2010.   She advises that Mr Thompson wishes to file a further affidavit attesting to this and she seeks a further hearing.  No explanation is offered as to Mr Thompson’s change of evidence, save for a reference in her submissions to memory problems following an accident. No explanation is given for his failure to file an affidavit since the direction was given on 24 February 2012.

[5]      Mr  Malarao  opposes  the  request  for  leave  for  Mr  Thompson  to  file  an affidavit out of time and for a further hearing.   He submits that no leave to file should be given and that the application for formal proof should be determined on the papers before the Court.   He has no objection to the Court  considering the affidavits of Messrs Goertz and Balmer, but submits that they do not provide any credible support for Mr Thompson’s opposition to judgment.

[6]      Therefore, the decision I have to make is whether I allow Mr Thompson the indulgence of a variation of the timetable and time to file a further affidavit, a

hearing for further submissions and cross-examination, or whether I proceed on the material before the Court.  Both parties have made further submissions on the effect of the affidavits of Messrs Goertz and Balmer.

[7]      I  have  decided  that  it  is  not  appropriate  to  allow  Mr  Thompson  the indulgence of further time to file an affidavit.  He has provided no adequate excuse for his failure to file an affidavit by 9 March 2012.  Ms Yaqub referred to her being delayed in Fiji when she was on bereavement leave between 28 March and 11 April

2012.  This does not in any way explain the failure to file an affidavit which was to have been filed by 9 March 2012.

[8]      Moreover   I   cannot   ignore   the   background   to   the   present   situation. Mr Thompson has stated on oath that he was in Dunedin on 16 November 2010.  He gave detailed evidence about this, asserting that he was visiting his brother.   He exhibited a boarding pass which appeared to confirm this.   Mr Thompson now accepts that evidence was wrong.   He is faced with an affidavit of Mr Evgueni Souslov  who  states  in  essence  that  the  boarding  pass  was  a  forgery.     But Mr Thompson has offered no explanation.

[9]      The gravity of the position Mr Thompson was in was entirely clear and this makes his unexplained failure to file any affidavit in response all the more serious.  I do not think it fair on the plaintiffs to grant what would in effect be yet another adjournment for another hearing.  I must not overlook the fact that it is necessary to do justice not only to the parties seeking the indulgence, but also to the party who wishes to retain the benefit of the timetable.

[10]     This application for formal proof was first called some five months ago on

24 November 2011.   I have heard submissions on the material that has been filed. There is no compelling reason to grant Mr Thompson the further indulgence sought and I am not prepared to do so.

[11]     I therefore determine that there will not be leave given to Mr Thompson to file a further affidavit.  There is therefore no need for a further fixture.  Mr Malarao does not seek to cross-examine Messrs Goertz and Balmer.  I will give my judgment

on the formal proof application on the papers presently before the Court.  I will give my judgment as soon as possible, but as it will involve a reconsideration of all the material I am not in a position to do so immediately.

……………………………..

Asher J