Pacific Law Limited (in liquidation) v Mason

[2021] NZHC 708

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2020-485-295

civ-2020-485-296 [2021] NZHC 708

IN THE MATTER

of PACIFIC LAW LIMITED (in liquidation)

BETWEEN

PACIFIC LAW LIMITED (in liquidation) First Plaintiff

AND

THE OFFICIAL ASSIGNEE AS LIQUIDATOR OF PACIFIC LAW

LIMITED (in liquidation) Second Plaintiff

AND

JANET MASON

Defendant

Hearing:	18 March 2021
Counsel:	P V Cornegé for the Plaintiffs No appearance for the Defendant
Judgment:	18 March 2021

ORAL JUDGMENT OF GRICE J

(Adjournment application)

[1]                 This matter was set down for a formal proof hearing for 10 am today. Notice of the hearing was sent to Ms Mason, the defendant, on or about 3 February 2021. Ms Mason is aware of today’s hearing, which is apparent from the email received by

PACIFIC LAW LTD v THE OFFICIAL ASSIGNEE [2021] NZHC 708 [18 March 2021]

the Registrar at 9.24 am this morning seeking an adjournment. The email is sent by Roger McDonald and states it is sent on behalf of Ms Mason. The email reads:

Dear Registrar

Please be advised that negotiations are ongoing between the respondent (Janet Mason) and counsel for the applicant (the Official Assignee). It has not been possible to have had the matter settled prior to 18 March 2021, however with funding now in place and the correct paperwork now obtained from archives and third party records, it is fully expected that settlement can be reached within a two week period to meet an outline repayment discussed between the parties in late 2020. It is respectfully requested that the subject hearing set down for today be adjourned for a period of two weeks to allow the matter to be settled prior to the requested adjournment date.

Roger McDonald

Practice Manager Phoenix Law Limited Constitution and Public Law Specialists PO Box 27400

Phoenix House 200 Willis Street Wellington

[2]                 Mr Cornegé advises me that Mr McDonald is Ms Mason’s husband. In addition, Mr Cornegé confirmed that as far as he  was  aware,  Ms  Mason  is  in New Zealand although she had been in Fiji last year.   Mr McDonald had advised   Mr Cornegé that Ms Mason was tied up in a hearing today. However, Mr Cornegé stressed that that was just conveyed him by telephone and he could not substantiate that.

[3]                 Mr Cornegé opposed the application for adjournment on two grounds: first, as the application for adjournment came at the very last moment and without warning, and secondly, he has instructions to proceed today. The applicant has filed submissions and supporting affidavits in support of its claim. Thirdly, Mr Cornegé said that Mr McDonald’s email perhaps was more hopeful of a settlement than might be the case. Finally, he pointed out that Ms Mason had known about the hearing date since early February and she has taken no steps. The claim was first filed in June 2020 and subsequently the claims were amalgamated.

[4]                 Ms Mason’s law firm, Pacific Law Ltd, was put  into  liquidation  by  the High Court on 24 June 2014. The Official Assignee was appointed liquidator. The

company was placed into liquidation on the application of the Commissioner of Inland Revenue who had applied for the winding up on 12 February 2014.

[5]                 Mr Cornegé pointed out that the settlement negotiations could continue despite whether or not the matter proceeds today and he also confirmed that no payments had been made by Ms Mason.

[6]                 Mr Cornegé noted the procedural history of this matter. There has been no defence filed by Ms Mason. That is despite the fact that following the filing of the claim, the plaintiffs had arranged a teleconference at which Ms Mason was present before Associate Judge Johnston.

[7]                 At that teleconference on 3 December 2020, Mr Cornegé appeared for the plaintiffs and Ms Mason appeared on her own behalf. By consent, directions were made that Ms Mason file a statement of defence to the amended statement of claim by 23 December 2020. Both parties were to provide standard discovery by 12 February 2021, and the Registrar was to liaise with counsel and Ms Mason to arrange a further case management conference as soon as possible after 12 February 2021. Those orders were made as Ms Mason had explained that she had been stuck in Fiji over the COVID-19 period, which is why she had not filed a defence to the claim.

[8]                 Subsequently, the matter came back before Associate Judge Johnston who dealt with it on the papers. On 1 February 2021 the Official Assignee filed a request that the case be listed for a formal proof hearing as Ms Mason had taken no steps. The matter was therefore set down for the formal proof hearing as I have indicated.

An adjournment may be granted by the Court on any terms it thinks just.1 The guiding principle is whether it is in the interests of justice. In assessing the interests of justice in terms of postponing a hearing, the Court must consider and weigh not only the interests of the immediate party but those of parties waiting in the queue for a hearing and the public interest in achieving the most efficient use of court resources.2

1      High Court Rules 2016, r 10.2. Rule 15.9 sets out the procedure for formal proof and r 15.10 provides that judgments obtained under r 15.9 may be set aside on terms as are just if it appears to the Court there has been or may have been a miscarriage of justice.

2      Cygnet Farms Ltd v ANZ Bank New Zealand Ltd [2016] NZHC 1945 at [8].

[9]                 The consideration of the interests of justice will involve a consideration of the reason for the adjournment. In this regard I note the adjournment was made at the very last moment by email, only half an hour before the matter was due for hearing. Secondly, it was made by Mr McDonald who is apparently a practice manager based in Wellington. Ms Mason herself is a practising lawyer. However there was no appearance by either Ms Mason or  anyone  on  her  behalf  despite  the  fact  that  Mr McDonald’s law firm is based in Wellington.

[10]              In addition, there is no reason offered for the adjournment other than the fact that  settlement  negotiations  are  continuing.   As  I  indicated  earlier,  adopting   Mr Cornegé’s comment, there is no reason why settlement negotiations cannot continue regardless of the matter proceeding.

[11]              In my view, given the procedural history of these proceedings to date, and the fact that nothing formal has been filed by Ms Mason, together with the late application for the adjournment and the fact that no reason for the adjournment has been given other than a vague reference to settlement negotiations, it is not in the interests of justice to grant an adjournment. The matter clearly needs to be dealt with. The plaintiffs are prepared and have filed the required documentation and counsel has filed submissions and is ready to proceed.

[12]              Therefore, I dismiss the application for adjournment. I propose now hearing the matter.

Grice J