Moore v Guardian Tree and Landscape Limited - [2016] NZHC 1720

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CIV-2015-454-129 [2016] NZHC 1720

BETWEEN
PETER JOHN MOORE AND

BEVERLEY ANNE MOORE First Appellants

JACKEYTOWN BLOOMS 2011
LIMITED
Second Appellant

AND

GUARDIAN TREE AND LANDSCAPE LIMITED

First Respondent

DARRYL ANDREW JUDD and JONAS MULLER

Second Respondents

Hearing: 13 July 2016

Counsel:

K P Sullivan for appellants
P J Drummond for respondents

Judgment:

27 July 2016

RESERVED JUDGMENT OF CULL J

Moore v Guardian Tree and Landscape Ltd [2016] NZHC 1720 [27 July 2016]

Contents

Introduction ........................................................................................................... [1] The parties ............................................................................................................. [3] Chronology of proceedings ................................................................................... [7] The strike out/stay decision................................................................................. [23] Nature of appeal .................................................................................................. [30] No reasonable opportunity to be heard ............................................................... [34] The threshold test for strike out for non-compliance .......................................... [40] Was Jackeytown Blooms represented at the strike-out/stay hearing? ................. [52] The effect of stay................................................................................................. [60] Service of counsel’s memorandum ..................................................................... [63] Conclusion .......................................................................................................... [67] Costs .................................................................................................................... [69] Orders .................................................................................................................. [71]

Introduction

[1] This is an appeal from a decision of Judge G M, striking out the first appellants’ statement of defence, entering judgment in favour -of the respondents, staying the second appellant’s counterclaim and awarding costs against the appellants for non-compliance with orders of the District Court for discovery.1

[2] The appeal is allowed for the following reasons.

The parties

[3] In 2011, Guardian Tree and Landscape Limited (Guardian Tree) carried out hedge cutting and pruning work for Mr and Mrs Moore (the Moores) at their commercial hydrangea business, Jackeytown Blooms 2011 Limited (Jackeytown
Blooms). Guardian Tree was the plaintiff, now first respondent in this appeal.

1 Guardian Tree and Landscape Ltd v Moore [2015] NZDC 22730.

[4] The Moores are the directors of Jackeytown Blooms. The Moores paid

$18,000 of Guardian Tree’s invoices for their pruning work by 20 December 2011, leaving an unpaid balance of $17,029.

[5] Guardian Tree filed proceedings against the Moores for the unpaid balance and the Moores filed a notice of defence. Jackeytown Blooms, as counterclaim plaintiff, now second appellants in this appeal, filed a counterclaim for $186,181 in negligence against Mr Judd and Mr Muller, the directors of Guardian Tree. Mr Judd and Mr Muller were the first and second counterclaim defendants and are the second respondents in this appeal.

[6] In this judgment, the Moores and Jackeytown Blooms, will be collectively referred to as the Moores. Mr Judd and Mr Muller and Guardian Tree will be collectively referred to as Guardian Tree.

Chronology of proceedings

[7] On 26 March 2012, Guardian Tree filed its claim for $17,029 against the Moores and the Moores filed their statement of defence and counterclaim against Mr Judd and Mr Muller on 8 May 2012. Guardian Tree filed its response to the counterclaim on 19 June 2012, but thereafter matters progressed more slowly. There were numerous disputes about the filing of briefs of evidence, with timetabling directions being issued on 23 September 2013.

[8] On 17 December 2013, Guardian Tree applied to strike out the Moores’ defence and counterclaim, on the grounds that…

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.

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Details

Case: [2016] NZHC 1720
Decision Date: 27 July 2016

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Moore v Guardian Tree and Landscape Limited was heard, with the appeal allowed for the following reasons. The appellants, Peter John Moore and Beverley Anne Moore, were directors of Jackeytown Blooms 2011 Limited, a hydrangea business. The first respondent was Guardian Tree and Landscape Limited, which had carried out hedge cutting and pruning work for the Moores. The Moores had paid $18,000 of Guardian Tree's invoices, leaving an unpaid balance of $17,029. Guardian Tree filed proceedings against the Moores for the unpaid balance, and Jackeytown Blooms filed a counterclaim for $186,181 in negligence against the directors of Guardian Tree.

The legal issues that the court was required to decide were whether the appeal was a general appeal or an appeal against the exercise of a discretion, and if the Moores were given a reasonable opportunity to properly oppose the ultimate sanction of the Court. The court found that the appeal was against the exercise of a discretion and that the Moores were not given a reasonable opportunity to be heard.

The court's reasoning and outcome were based on the grounds of appeal raised by the Moores, which included inadequate notice, restricted order for discovery overlooked, and the threshold test for striking out for non-compliance. The court found that the Moores did not have a reasonable opportunity to be heard, and that the threshold test for striking out for non-compliance was not met. The court also found that Jackeytown Blooms was not represented at the hearing, and that the effect of the stay decision was equivalent to an unless order. The court concluded that the sanctions imposed on the Moores were not proportionate to their default, and that there was a breach of natural justice, as the opposing counsel and the Moores were not served with counsel's memorandum.

The final orders of the court were that the appeal by the Moores was allowed, the District Court judgment of 17 November 2015 was set aside, and there would be no order as to costs.

Orders