Monnery v Parsons - [2024] NZHC 1123

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2018-485-482

[2024] NZHC 1123

BETWEEN
PAUL MARK MONNERY

Plaintiff

PAUL MARK MONNERY and JULIE ANN MONNERY

Second Plaintiffs

AND

ANDREW GRAHAM PARSONS

First Defendant

JOHN MURRAY CREIGHTON

Second Defendant

BRUCE GORDON COPELAND
Third Defendant

KURT BRUDENBECK
Fourth Defendant

MURRAY CHARLES PARSONS

Fifth Defendant

PUSH DEVELOPMENTS LIMITED

Sixth Defendant

continued…

Hearing: 7 May 2024

Counsel:

C R Carruthers KC and R L Fletcher for Plaintiffs

P R W Chisnall and J D Haig for First and Sixth Defendants J P Nolen for Second Defendant
D J Chisholm KC and J D Ryan for Third, Seventh and Eighth Defendants

G Bogiatto for Fourth, Fifth and Ninth Defendants

Judgment:

8 May 2024

JUDGMENT OF RADICH J

MONNERY v PARSONS [2024] NZHC 1123 [8 May 2024]

… continued

SANDFIELD ASSOCIATES LIMITED
Seventh Defendant
SANDFIELD VENTURES LIMITED
Eighth Defendant
P K B INVESTMENTS LIMITED
Ninth Defendant

[1] The first and sixth defendants have applied to adjourn the trial of this proceeding which is set down to be heard over three weeks beginning on Monday, 1 July 2024.

[2] The application is supported by each of the other defendants. It is opposed by the plaintiff.

[3] At the end of the hearing of the application yesterday, I said that I would, by the finest of margins, grant the application. These are my reasons for that decision.

Background

[4] The proceeding has a long and troubled procedural history. It began in July 2018. By August 2020, and after a number of interlocutory steps, it was set down for a three-week trial to begin on 21 June 2021. However, in a minute of 2 March 2021, as a result of discovery issues raised by all parties, Associate Judge Johnston vacated the fixture. There was, as the Associate Judge put it, virtually no prospect of dealing with all discovery issues and getting the timetable on track such that to retain the fixture would almost inevitably operate unfairly insofar as one or more of the parties was concerned.1

[5]It is of concern, then, that, three years later, a similar position emerges.

1 Monnery v Parsons, Minute of Associate Judge Johnston of 21 March 2021, at [6].

[6] The intervening period has been filled with opposed interlocutory matters, including on discovery and interlocutories, further security for costs, the appointment of an expert and recall.

[7] In early December 2022 a second amended statement of claim was filed. Later that month, a joint memorandum was filed for the defendants in which, among other things, timetable directions were proposed`. In a memorandum for the plaintiffs filed several days later, the proposed timetable was accepted.

[8] In a minute of 19 December 2022, Associate Judge Johnston made directions in accordance with the proposed timetable. Accordingly, timetabling orders were in place which provided that the close of pleadings date was 120 working days before the commencement of trial, that the plaintiffs were to serve their evidence…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Monnery v Parsons

Details

AGLC: Monnery v Parsons [2024] NZHC 1123
Case: [2024] NZHC 1123
Decision Date: 8 May 2024

CaseChat Overview and Summary

Monnery v Parsons is a complex legal case involving multiple defendants and substantial claims for damages. The plaintiff, Paul Mark Monnery, filed the suit in July 2018, with multiple amended claims, the latest in December 2022. The defendants, including individuals and companies, face claims amounting to over $13.5 million across five causes of action. The defendants have applied for the trial, scheduled to begin on July 1, 2024, to be adjourned due to significant procedural delays and defaults by the plaintiff.

The court had to determine whether to grant the adjournment application, considering the long history of delays and the defaults by the plaintiff. The key issues included the fairness of the trial given the missed deadlines, the prejudice to the defendants if the trial proceeded as scheduled, and the overall interests of justice. The court needed to balance the defendants' need for adequate preparation time against the plaintiff's right to have the case heard and the efficient use of court resources.

After considering the extensive procedural history, the court found that the missed deadlines and defaults by the plaintiff had caused significant prejudice to the defendants. Despite the plaintiff's efforts to remedy the situation, the court concluded that the resulting time constraints would make it unjust to proceed with the trial as scheduled. The court accepted that the defendants had acted reasonably in trying to avoid the need for an adjournment and that the reasons for the application outweighed the reasons against it. The court also noted the defendants' concerns about the admissibility of the plaintiff's evidence, which would need to be addressed in a timely manner.

The court granted the application to adjourn the trial and directed the parties to liaise with the registry to find an alternative date. The next available date for the trial, if circumstances do not change, is September 8, 2025. The court also confirmed a fixture for May 14, 2024, to deal with outstanding interlocutory issues, including a discovery application by the first and sixth defendants. The May 29, 2024, fixture before Associate Judge Skelton was vacated as a result of the adjournment.

Orders