Norman Glass Services Limited v Norman

[2018] NZHC 2043

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2017-404-611

[2018] NZHC 2043

BETWEEN

NORMAN GLASS SERVICES LIMITED

Plaintiff

AND

MARK NORMAN

Defendant

Hearing:	7 August 2018
Appearances:	M A H Macfarlane and H W Y Yiu for Plaintiff D J G Cox for Defendant
Judgment:	10 August 2018

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 10 August 2018 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: ...................................

Solicitors:           Hesketh Henry, Auckland

Robert Burnes & Associates, Auckland Rennie Cox, Auckland

NORMAN GLASS SERVICES LTD v NORMAN [2018] NZHC 2043 [10 August 2018]

Introduction

[1]The trial of this proceeding commences on 13 August 2018.

[2]                 The issue in the proceeding is whether the plaintiff, Norman Glass Services Limited (“NGSL”), has an option to purchase or a right of first refusal on premises which it leased from the owner, the defendant, Mr Norman. Mr Norman has entered into an agreement for sale and purchase of those premises to a third party.

[3]By application dated 30 July 2018, the plaintiff sought orders:

(a)in respect of the evidence of Ian Milton MacLaren; and

(b)for leave to continue acting as counsel.

[4]The application was opposed.

[5]                 The application for leave to continue acting as counsel has been resolved. It was made because the defendant wishes to adduce evidence from a solicitor at Hesketh Henry. Regardless, the defendant has no objection to Hesketh Henry continuing to act in the proceeding. Given that, by consent, I grant leave to Hesketh Henry to continue acting as counsel in accordance with its application.

Mr MacLaren

[6]                 Mr MacLaren was a clerical assistant to Mr Metge, the principal of NGSL, and his evidence is expected to be of some relevance at trial. In the usual course of events, Mr MacLaren would have to appear and be available for cross-examination but his state of health rules that out.

[7]                 The orders that NGSL seeks in respect of Mr MacLaren’s evidence are as follows:

(a)That [Mr MacLaren], witness for [NGSL], be exempt from having to give evidence in person at the upcoming trial of this matter scheduled to commence on 13 August 2018;

(b)That the prior evidence of [Mr MacLaren], being his affidavit sworn on 23 March 2017 and his earlier evidence, including cross- examination, as detailed in the transcript for proceeding CIV-2017- 404-000379 before her Honour Justice Gordon, be read as his evidence for the upcoming trial.

[8]                 The defendant opposes the making of  these  orders  on  the  grounds  that  Mr MacLaren is an important witness and because he contends that NGSL has delayed seeking these orders, making it difficult, if not impossible, to take Mr MacLaren’s evidence in another way.

[9]                 I do not have jurisdiction to exempt Mr MacLaren from giving evidence, being the first order sought. However, when I discussed this matter with counsel for NGSL, Ms Macfarlane, she advised that she sought to have Mr MacLaren’s evidence admitted as a hearsay statement pursuant to s 18(1) Evidence Act 2006 (“Act”) which provides:

18       General admissibility of hearsay

(1)A hearsay statement is admissible in any proceeding if—

(a)the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and

(b)either—

(i)the maker of the statement is unavailable as a witness; or

(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

[10]              The hearsay statements that NGSL wishes to adduce are an affidavit that    Mr MacLaren swore on 23 March 2017 in CIV-2017-404-379 (“CIV-379”), and the notes of evidence of his cross-examination on the same. CIV 379 was a proceeding before Gordon J, in which the defendant sought, unsuccessfully, to remove a caveat NGSL had lodged against the title to the premises in dispute.1

[11]              I am satisfied that Mr MacLaren is unavailable as a witness within the meaning of s 16(2) of the Act, so s 18(1)(b)(i) is satisfied. I accept that it would have been

1      Norman v Norman Glass Services Ltd [2017] NZHC 1597.

preferable for NGSL to notify Mr MacLaren’s position earlier but I am not persuaded it affects the course that I should take.

[12]              I am also satisfied that s 18(1)(a) is satisfied because the hearsay statements were made on oath.

[13]              The real issue is whether there is any unfairness to the defendant by what is proposed, as to which the following matters seem to be of consequence.

[14]              Mr MacLaren’s evidence is expected to be relevant at trial because he handwrote two letters that will feature. The gist of Mr MacLaren’s evidence is that from  time  to  time  Mr  Metge  would  dictate  letters  to  Mr  MacLaren  which   Mr MacLaren would then write out. The two letters to which I have referred were in that category, or so Mr MacLaren says.

[15]              As to the first letter, Mr MacLaren’s evidence is that, having handwritten the letter as instructed, he went into Mr Metge’s office and read it out loud to him and that Mr Norman was present at the time. Mr Norman denies that this ever occurred.

[16]              There is no issue, now at least, that the two letters are in Mr MacLaren’s handwriting and that NGSL was in possession of the originals when the dispute between the parties arose. The issue is whether Mr Norman was present on the occasion to which Mr MacLaren referred. Mr Cox, counsel for Mr Norman, cross- examined Mr MacLaren on this issue before Gordon J and he remained adamant that Mr Norman was there.

[17]              When I discussed this matter with counsel on 6 August 2018, Mr Cox could not identify any new question that he wished to put to Mr MacLaren. It may be, however, that something arises during the trial which should be put to Mr MacLaren. If that were to occur, I would be willing to consider how Mr MacLaren’s evidence might be obtained on the point. That is a matter I shall address if it becomes necessary.

[18]              In the meantime, Mr MacLaren’s affidavit and the notes of his cross examination/re-examination are admissible. The weight to be given to the evidence will be a matter for submission.

Peters J