New Zealand Trade Centre Limited v Lianhua Trading Group Limited

[2015] NZHC 3014

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY

CIV 2015-404-002726

[2015] NZHC 3014

BETWEEN

NEW ZEALAND TRADE CENTRE LIMITED
Plaintiff

AND

LIANHUA TRADING GROUP LIMITED

Defendant

Hearing:	27 November 2015
Appearances:	JEM Lethbridge/CJL Wei for the Plaintiff JWA Johnson for the Defendant
Judgment:	1 December 2015

JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

This judgment was delivered by me on

01.12.15 at 12:30pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date……………

NEW ZEALAND TRADE CENTRE LIMITED v LIANHUA TRADING GROUP LIMITED [2015] NZHC

3014 [1 December 2015]

[1]                   On 25 November 2015 the defendant filed applications for orders staying proceedings and restraining advertising. The matter was called before me on 27 November 2015. The plaintiff applied to dismiss the defendant’s applications on grounds that no supporting affidavit was filed by the defendant.

[2]                   Ms Lethbridge for the plaintiff submits High Court Rule 7.20 requires an affidavit in support being filed at the same time as the application.

[3]                   Whilst the defendant’s application had been filed and served on 25 November 2015, by when it had to be filed, (HCR 31.11(1)), no affidavit was then filed or served.

[4]Ms Lethbridge submits the defendant’s applications should be struck out.

[5]                   The Court disagrees. The Court has power under the HCRs to allow the application to be heard notwithstanding the non compliance with HCR 7.20. The Court retains a discretion under HCR 1.19 to extend the time for the filing of a supporting affidavit and therefore allowing the application to proceed. A formal application under r 1.19 is not required and nor is the requirement for a r 1.19 application to be filed within the r 31.11 five day timeframe.

[6]                   For this case an unwitnessed affidavit was served on the plaintiff on 26 November 2015 at 12:11pm. A properly witnessed affidavit was then filed electronically and served on the parties on 27 November 2015 at 8:41am. A physical copy of the properly witnessed affidavit was filed with the Court during the 27 November 2015 mention at 11:45am before me.

[7]                   As HCR 1.19 contemplates there will be circumstances where parties do not intend to miss deadlines and/or when the need for extensions is not always foreseeable. The defendant is owned by a registered Chinese corporation. Apparently a witnessing irregularity in China contributed to delays in filing the affidavit within the timeframe. Regardless, an unsigned copy was served and the following day the signed affidavit was filed and served.

[8]It does not appear there was any intended breach of HCR 7.20.

[9]                   It seems to the Court no element of injustice was caused by the two day delay. Ms Lethbridge submitted the defendant’s affidavit was five pages long only and contained bold assertions including that the defendant company is not insolvent yet, no objective evidence was provided by which such claims could be tested.

[10]Ms Lethbridge requests an urgent hearing be scheduled this year.

[11]               In the Court’s view it should not be tempted to draw any conclusions at this time regarding the merits of the defendant’s applications. Nor does the Court consider there is any urgency needed.

Conclusions

[12]               The plaintiff’s application to strike out due to non compliance with HCR 7.20 is dismissed. The Court exercises its discretion to allow the defendant’s affidavit to be filed when it was.

[13]               The Registry is to consult with counsel regarding their availability for the purpose of scheduling a half day hearing in the new year.

[14]               The defendant is required to file and serve submissions, a paginated and indexed casebook of relevant pleadings,  and  bundle  of  authorities  no  later than 10 working days prior to the hearing.

[15]               The plaintiff’s submissions and bundle of authorities are to be filed and served no later five working days prior to the hearing.

[16]               The Court makes interim orders for stay and to prevent advertising pending further order of the Court.

Associate Judge Christiansen