Payne v Thomas

[2025] NZHC 2864

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CIV-2025-443-34

[2025] NZHC 2864

IN THE MATTER OF

a decision of Greig DCJ dated 14 May 2025

BETWEEN

SIMON MARK PAYNE and

CHALLENGE TRUSTEES LIMITED
Appellants

AND

DAVID MARK THOMAS

First Respondent

WESTOWN AGRICULTURE LIMITED

Second Respondent

Hearing:	4 September 2025
Counsel:	S Hughes KC for Appellants K Pascoe for Respondents
Judgment:	30 September 2025

JUDGMENT OF GRAU J

[Appeal against strike-out]

[1]    The New Plymouth District Court struck out the appellants’ breach of contract proceeding against the respondents because their lawyer did not file their evidence on time, contrary to an “unless” order.1 The appellants argue the Judge was wrong to do so when the reason for the lawyer’s failure to file the evidence — his ill-health — was explicable and explained, and it was completely outside the appellants’ control. When there was no trial date and the evidence was filed only six days later, that delay could have been met by providing the respondents additional time to reply, instead of the blameless appellants having their proceeding terminated. The appellants ask this

1      Payne v Thomas [2025] NZDC 2919 [decision under appeal].

PAYNE v THOMAS [2025] NZHC 2864 [30 September 2025]

Court to quash the decision and direct that their proceeding should be reinstated and prepared for a hearing.

[2]    The respondents’ position is that the Judge’s strike out decision was the correct and appropriate response to the breach of timetabling directions to ensure compliance and the proper administration of justice in accordance with legal principles.

Background

[3]    The proceedings that Judge Grieg struck out concerned an allegation by the appellant, Mr Payne, that the supplementary feed for his farm was not provided as agreed by the respondents. This alleged failure was said to have caused a loss of approximately $133,000, which the respondents firmly denied. The proceeding was filed on 1 March 2024, shortly before the expiry of the limitation period for the claim.

[4]    The appellants were initially represented by a partner of a local New Plymouth law firm but were later represented by another solicitor of that firm.2 By June 2024, the solicitor acting in the proceeding was the sole litigator at the firm. In response to concerns he raised about his workload the firm had recruited a secretary to assist him. The solicitor, who had some 10 years’ experience, had also had past mental health struggles which he managed with regular exercise and routine.

[5]    On 19 June 2024, the parties received notice of the first case management conference, which was scheduled for 1 July 2024. The notice required counsel to discuss matters and either file a joint memorandum or separate memoranda addressing the matters set out in pt A of sch 3 to the District Court Rules 2014.3 On 27 June 2024, counsel for the respondents filed a separate memorandum, having had no contact from the appellants’ counsel.

[6]    On 1 July 2024, the appellants’ counsel (still the partner of the firm at that stage) advised the Court and opposing counsel that he was instructing other counsel

2      The solicitor and his firm are not named in this decision, given the context which involves mental health difficulties.

3      Concerning matters such as disclosure, whether the pleadings adequately identified the issues, joinder of additional parties, and categorisation for costs.

outside of the firm to act on the matter. He accepted that the non-filing of the case management memorandum was his responsibility and he apologised for his non-compliance.

[7]    That same day, the solicitor appeared on behalf of the appellants on agency instructions for the firm’s partner. He sought an adjournment of the proceeding due to outside counsel having only been recently instructed. The respondents opposed adjournment and sought a short trial.4 The Judge declined the adjournment request and set the case down for a short trial with timetabling directions in accordance with the respondents’ counsel’s memorandum.

[8]    On 18 July 2024, counsel received notification from the Court of a short trial on 24 September 2024, on a back-up basis. The notice of short trial required the appellants to pay the scheduling fee of $1,170 on 8 August 2024 and the hearing fee of $1,170 on 13 August 2024. Following enquiries by the respondents’ counsel, the Court advised that the appellants had not paid the scheduling fee, nor the hearing fee.

[9]    On 13 September 2024, the solicitor for the appellants filed a memorandum seeking to adjourn the trial on 24 September. Adjournment was sought on the basis that neither party had complied with the timetabling directions for filing evidence and because he said it had been impossible to complete the evidence in time for the fixture. The solicitor went on to explain that there had been issues regarding the engagement of the barrister the firm had instructed, and the solicitor had only been given the file in late July but he had contracted COVID-19. He was consequently off work for the best part of two weeks in late July/early August, affecting his ability to attend to the matter.

[10]    The respondents had not filed their evidence either, because, as their counsel explained, the appellants had not filed the requisite fees and given the lack of compliance by the appellants with prior directions, they had not wanted to incur additional costs to the respondents from the unnecessary preparation of evidence.

4      A short trial is a trial intended for claims where the court considers the case can come to a hearing quickly, and/or the issues are relatively uncomplicated or a modest amount is at stake and/or the trial time is not likely to exceed one day. See r 10.1 of the District Court Rules 2014.

[11]   The Judge declined to adjourn the trial. Counsel then discussed the matter and asked the Judge to hold a judicial settlement conference (JSC) instead. The JSC was then conducted in place of the trial on 24 September 2024. Unfortunately, the JSC did not resolve matters. The appellants’ solicitor advised the Court at the conference that his witnesses were briefed and their evidence was “all but ready to be filed”.5

[12]   At the conclusion of the JSC the Judge made further timetabling orders that the parties had agreed to. Those directions required the appellants to file all of their evidence by the close of business on 15 October 2024, the respondents to reply by  12 November and any further evidence (strictly in reply) by 26 November 2024. In his minute the Judge stated:

These timetabling directions are of the essence. Any breach will result in that party’s participation being struck out. Costs are likely to flow at that point.

[13]   That same day the appellants’ solicitor fell ill with the flu. He later deposed that he found himself “wholly incapable of clear thought” and although he took his laptop home with him, he was unable to work to any meaningful extent. He tried to return to work on 10 and 11 October 2024 but he said he never lasted more than an hour or two before he had to concede he was too unwell to work. When he returned to work again on 14 October 2024, he experienced difficulties with his assistant, and he said it was “apparent that we would not be able to work together any longer”.

[14]   On 14 October 2024, the appellants’ solicitor emailed counsel for the respondents advising them of his inability to comply with the directions due to him having been off work with a virus. He asked the respondents to consent to extend the timetable for filing evidence. Counsel for the respondents advised that there was no consent to an extension and any application for an adjournment would be opposed. The solicitor later deposed that this response was the “straw that broke the camel’s back”, with him becoming overwhelmed and in a state of “mental paralysis”. After an appointment with his GP, he took two weeks off work to address his mental health.

5      Decision under appeal at [18] which also sets out that the solicitor later confirmed that was the case in a subsequent affidavit dated 8 November 2024.

[15]   In the afternoon of that day, the solicitor sent an email to the partner of the firm advising him of a number of matters that needed attention, including:

Evidence due for Payne tomorrow which I was intending on seeking an extension for – somebody please attend to that as a priority because the judge indicated he would bar any further steps being taken if we didn’t comply. That would be in error but it’ll be a lot of work to overturn that error, much less to seek an extension right away.

[16]   The partner did not see this email until the morning of 15 October 2024, the same day the evidence had to be filed. On that day, the firm contacted the Court to advise that their employee was unwell and was not in a position to meet the timetabling directions. They sought an extension to the timetable for filing evidence and also advised that they would engage external counsel to assist to ensure the evidence was filed as soon as possible if the solicitor was not in a position to do so. The firm also instructed counsel, Ms Hughes KC, who was able to prepare and file the evidence six days after the 15 October deadline.

[17]   Also on 15 October 2024, the respondents filed a memorandum of counsel opposing any application for an extension and an interlocutory application to strike out the claim. As counsel for the respondents acknowledged at the appeal hearing, the application to strike out was unnecessary; instead the “unless order” by the Judge would have applied and the claim would have ended, unless the appellants sought and were granted relief from the order.

[18]   On 16 October 2024, the Registrar advised the parties that the Judge was on leave and was attending conferences  until  24  October 2024.  By  a minute dated  25 October 2024, the Judge directed the strike-out application to be set down for a two-hour hearing. He anticipated that the appellants’ solicitors “may need to provide evidence to justify why Mr Payne’s case should not be struck out in view of the acknowledged breach of earlier timetabling directions”.

[19]On 5 November 2024, the Judge made the following direction:

… that either [the solicitor] and/or partner from his law firm is to file an affidavit, with detailed and credible supporting evidence, as to why the timetabling directions that were made, by agreement, where the time expressed in the directions was expressed as being “of the essence” and

against that background whereby Counsel for Mr Payne had already neglected to file material on time, were not met on this occasion.

[20]   The strike-out application was heard on 17 February 2025. Following the hearing, the Judge provided the appellants with a further opportunity to address:

… whether or not the failure to comply with the unless order was a failure by his solicitors, not simply an individual solicitor employed by the firm, an individual who the firm knew, or should have known, had fragilities and who was, on his own evidence, overworked and unsupported.

[21]   On 14 May 2025 the Judge delivered his decision striking out the appellants’ proceeding against the respondents.

Decision under appeal

[22]   In his decision, Judge Grieg outlined the evidence that had been filed opposing strike-out, namely of the solicitor and the partner of the firm. He noted the solicitor’s evidence as to his ill-health, workplace issues, past struggles with mental health, and that his workload and sickness meant he “found himself in the middle of a perfect storm”. Judge Grieg also noted the solicitor was the only litigation lawyer in his firm, which had lost three other litigators in the previous 12 months, in a region said to already have too few litigation lawyers. After his two weeks off work the solicitor had resigned from the firm. He had also provided medical records.6

[23]   The partner asked the Court to accept that, but for the solicitor’s ill health, the evidence directed to be filed would have been provided in terms of the timetabling order. The partner’s evidence was that the solicitor had been left isolated as the sole litigator at the firm. He also described the efforts that the firm had made to ensure the solicitor was supported to manage his workload. Judge Grieg noted the partner’s comment that he was aware the solicitor was run down physically, but that until     15 October, he had no idea of the solicitor’s mental distress, or the 15 October deadline for filing the evidence in this matter.7

6 At 25]–[31].

7      At [32]–[33].

[24]   Judge Grieg also set out the evidence of Mr Thomas of Westown Agriculture Ltd, in support of strike-out, in which he deposed that the delays caused by the appellants had prejudiced him by disrupting his business during a particularly busy period. He had to spend additional time with his solicitors discussing the implications of the failures to comply with directions and he observed that the timetable had been set with regard to his busy schedule. The delays disrupted that schedule making it difficult for him to coordinate with his lawyer and adequately prepare for his case. Mr Thomas also deposed he suffered from high blood pressure which required medication and that “the constant delay of these proceedings” had vastly increased the stress on him. The Judge concluded that Mr Thomas had suffered “considerable prejudice by the delay”, in  a  proceeding  that  “should  have  been  completed  on 24 September 2024”.8

[25]   After summarising the applicable law, Judge Grieg set out a summary of other matters in which the same solicitor had failed to comply with timetabling directions. He noted a Family Court Judge’s comments in one proceeding that there was a history of consistent non-compliance with court directions. The Family Court Judge commented that the solicitor’s “personal circumstances in his workplace and his overcommitment provides little comfort to the Court, let alone the applicant who is entitled to pursue his application in a timely manner and have it heard”. Following a reference to another proceeding with similar issues, Judge Grieg concluded that the solicitor had “therefore been failing, it appears, for much of 2024”. After the hearing, the partner’s subsequent affidavit confirmed that he had received the Family Court Judge’s minute in one proceeding, but that none of the other minutes, judgments or matters were brought to his attention, either by the Court or by the solicitor.9

[26]   His Honour also considered that responsibility lay with the partner at the law firm who initiated the proceeding, was the solicitor on the record, and was the solicitor’s employer. The Judge noted the obligations under the Lawyers: Conduct and Client Care Rules 2008, which place the onus on all lawyers to ensure their practice is administered in a manner that ensures their adherence to their duties to the

8 At 34]–[36].

9      At [40]–[45]

Court and their clients.10 He also referred to the health and safety obligations of law firms under the Health and Safety at Work Act 2015 to ensure the health of their workers.11 He said it was incumbent on the firm to ensure their solicitor was not overwhelmed. The Judge accordingly concluded that it was the solicitor’s firm who had failed to comply with the unless order. He observed they should only be relieved of the consequences of that breach if he was satisfied they were not responsible for the breach.12

[27]   Although the solicitor only alerted his employers to the impending deadline the day before, there was no evidence his employers enquired as to what needed to be done urgently as soon as he became unwell. His Honour noted that Ms Hughes KC was instructed on, or soon after, the 15 October deadline and she was able to file the evidence on 23 October. He said there was therefore plenty of time after the solicitor left work for the evidence to be filed in time by someone else, with the failure to do so being negligent. His Honour also considered the partner’s evidence indicated the law firm was aware the solicitor needed support, although the partner’s evidence was that the firm was not aware of the extent of the solicitor’s mental health struggles. The evidence showed the solicitor had more work than he could cope with, and both required and demanded administrative support. However, the support provided did not meet his needs, with no partner being sufficiently aware of what files he was carrying. His Honour therefore concluded the firm was responsible for the failure to comply with the unless order.13

[28]   The Judge concluded that he was not satisfied the solicitor’s ill health explained or excused the breach of the unless order. The solicitor should have advised his firm as soon as he went on sick leave of both the impending deadline and the unless order. So too should the firm have been aware of the solicitor’s workload and his struggles to manage it and should have asked him what needed to be done in his absence as soon as he went on sick leave.14

10     The Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008, ch 11.

11     Health and Safety at Work Act 2015, s 36.

12 Decision under appeal at [50].

13     At [51]–[53]

14 At [56].

[29]   His Honour agreed that the solicitor’s past issues and breaches should not be conflated with this breach. He explained that his reference to those matters was instead to illustrate why both the solicitor and his employer should have been more proactive when the solicitor went on sick leave. His Honour considered the six-day delay before the evidence was finally filed as immaterial, when it remained a breach of the unless order. He also considered the short delay to file the evidence illustrated how avoidable the delay really was, had the firm only asked what needed to be done. His Honour concluded that the defendant suffered significant prejudice, as evidenced in his affidavit. He said that he was satisfied all the criteria were met in the leading case of SM v LFDB, and accordingly struck out the claim.15

Legal principles

[30]   There is no dispute between the parties as to the applicable legal principles relevant to unless orders. In SM v LFDB, the Court of Appeal set out those principles as follows:16

(a)As an unless order is an order of last resort, it is properly made only where there is a history of failure to comply with earlier orders.

(b)An unless order should be clear as to its terms. That is, it should specify clearly what is to be done, by when and what is the sanction for non-compliance. That sanction should be proportionate to the default.

(c)The sanction will apply without further order if the party in default does not comply with the order by the time specified. However, the party in default may seek relief by application to the Court.

(d)Justice may require that the party in default be relieved of the consequences of the unless order where the Court is satisfied that the breach resulted from something for which the party should not be held responsible. The party should not assume that belated compliance will suffice.

(e)Where the unless order has been deliberately breached — that is, flouted—it is difficult to conceive of any situation where the interests of justice would require granting the flouter relief from the sanction imposed, notwithstanding belated compliance with the order.

(f)In deciding whether or not to excuse breach of an unless order the question for the Judge is: what does justice demand in the

15     At [58]–[62].

16     SM v LFDB [2014] NZCA 326, [2014] 3 NZLR 494 at [31].

circumstances of this case? Considerations in answering that question include:

(i)The public interest in ensuring that justice is administered without unnecessary delays and costs.

(ii)The interests of the injured party, in particular in terms of delay and wasted cost.

(iii)Any injustice to the defaulting party, although that consideration is likely to carry much less weight in the circumstances than considerations (i) and (ii).

[31]   In Ko v Ko Paterson J observed that, in a situation where a judicial officer has felt compelled to make an unless order, the order should be upheld unless it can be established there were no grounds for making such an order or that reasons beyond the party’s control caused non-compliance.17 He commented that this is particularly so where counsel, knowing that the order was an unless order, did not apply before the expiry of that order for an extension of time.

[32]   Additionally, in Anderson v Mainland Beverages Ltd, the Court of Appeal considered unless orders should generally be reserved for cases where the breach or continued breach is “objectively measurable and unchallengeable”.18 The Court referred to Re Jokai Tea Holdings Ltd where it was stated that if a party can explain convincingly that outside circumstances account for the failure to obey the peremptory order, and there was no deliberate flouting of the Court’s order, the conduct is not contumelious and therefore the consequences do not flow.19

Submissions

Appellants’ submissions

[33]   Ms Hughes KC for the appellants submits there was no foundation for the finding that the solicitor’s firm failed to supervise or oversee the solicitor. She notes the solicitor at that stage had at least 10 years’ experience, had a secretary hired at his request for his sole use, and was subject to regular reviews and contact from the partner. She says this was not a case where a junior employee was abandoned without

17     Ko v Ko (2000) 14 PRNZ 362 (HC) at [18].

18     Anderson v Mainland Beverages Ltd (2005) 17 PRNZ 757 (CA) at [44]–[45].

19     Re Jokai Tea Holdings Ltd [1992] 1 WLR 1196 at 1202.

support or resources requiring them to work beyond their experience and ability. She argues it was reasonable for the partner to believe that the solicitor would draw any issues he had to the firm’s attention.

[34]   In terms of prejudice to the respondents, Ms Hughes notes the appellants’ response to that claim has consistently been that there was no trial date, and that any delay could be met by extending further time for the respondents to reply.

[35]With reference to the principles identified in SM v LFDB, Ms Hughes says that:

(a)In terms of a history of failure to comply with earlier orders, neither party had complied. It is also of no relevance that the proceeding was filed near the end of the statutory limitation period, as it was filed in time.

(b)In terms of the sanction being proportionate to the default, the default was not caused by the appellants, and compliance was achieved within six working days of the matter coming to the attention of  the firm.  Mr Payne himself had no control over the conduct of the litigation, and it is unjust to disadvantage him by denying him a hearing of his claim.

(c)With regard to what justice demands in the circumstances, there was no fixture date, therefore no fixture was compromised. Nor was there any real prejudice to the respondents. It was not the appellants’ fault the order was not complied with, and there was a compelling explanation for the delay. More monitoring of the solicitor by his firm would not have prevented the onset of COVID 19 and the flu, and without the solicitor informing the firm of the unless order, there is not much more the firm could have done.

Respondents’ submissions

[36]   Ms Pascoe for the respondents submits it was appropriate to strike out the proceeding for non-compliance with the unless order and it was a correct finding in law. She notes that there was no challenge to the making of the unless order, and

therefore says the only issue on appeal is whether the Judge was correct to determine that the failure to comply with it should not be excused.

[37]   Ms Pascoe points out that the Judge’s reference to prior breaches by the solicitor was not for the purpose of illegitimately bolstering the breach in this case, nor to make it more serious. Rather, it was cogent evidence to illustrate repeat non-compliance which exemplified why both the solicitor and his firm should have been far more proactive when the solicitor went on unexpected sick leave.

[38]   Ms Pascoe says the appellants’ contention that the firm was unaware of the unless order or the prior breaches ignores the fact that the solicitor had a significant history of ill-health, and that the firm was aware of his administrative support issues. She argues it also fails to recognise the firm’s obligations under the Lawyers: Conduct and Client Care Rules and Health and Safety at Work Act. She notes that the partner confirmed the firm’s awareness of the solicitor’s past mental health challenges, including that he did not practice law for four to five years following his diagnosis in 2016. She says the directors of the firm were aware he was fragile and needed support, but none of them were sufficiently aware of what files he was carrying. Ms Pascoe says his Honour was correct to determine it was incumbent upon the firm to ensure their solicitor was coping with his workload and Court obligations, with no evidence that they made the requisite enquiries once he became unwell.

[39]   Ms Pascoe says the Judge correctly determined the firm was responsible for the failure to comply with the unless order, with the appellants failing to establish the factual findings were unsupported by evidence. She says his Honour correctly identified that the shortness of time in which the documents were belatedly filed confirmed that compliance was not beyond the control of the firm. She argues the Judge had appropriate regard to the public interest in ensuring that justice is administered without unnecessary delays and costs. She also says the Judge correctly found the respondents had suffered delay and wasted cost, with evidence showing the impact on the respondents’ business and health. She notes the timetable was also set to allow the respondents time to respond before entering the busiest harvesting period for their business.

[40]   Ms Pascoe further submits the sanction of the unless order was clear as to its terms and the Judge was correct to determine it should be upheld, when the appellants had not explained convincingly that outside circumstances accounted for the failure to obey the pre-emptory order. She argues it would seriously reduce the value of unless orders if the appellants were able to have it set aside based on the evidence filed. She says the appellants’ argument that Mr Payne should not be held responsible for his lawyer’s breach does not accord with the principles of an unless order, noting that Mr Payne has an alternative claim against the firm.

Analysis

[41]   As noted by counsel for the respondents, the appellants do not appear to challenge the making of the unless order in this case. Rather, they argue that the Judge erred in determining the breach resulted from something that the appellants were responsible for. However for completeness, I note there was a history of failure to comply with earlier orders in the proceeding; being a failure to pay scheduling and hearing fees, following a failure to file a memorandum for the first case management conference. The unless order was also clear in its terms, specifying that, if the timetabling orders to file evidence by 15 October 2024 were not complied with, the proceeding would be struck out. That said, I also accept Ms Hughes’ point that the unless order was made relatively early in the proceeding following the unsuccessful JSC. There was no confirmed fixture at that stage, and I consider a fixture would have been unlikely before the end of 2024, given that the respondents’ evidence was not due until mid-November, reply evidence was not due until the end of November and there was no local Judge to hear the case.20 Accordingly, although it can be said the order was properly made in terms of principle (a) in SM v LFDB — because there had been a history of failure to comply with earlier orders — I have some difficulty with the idea that there was a need for this order of “last resort”. This is particularly so when the parties had only just ended their agreed, but unfortunately unsuccessful, attempt to settle the matter in a JSC.

20 Judge Greig had recused himself from being the trial Judge, having conducted the JSC: see decision under appeal at [19].

[42]   In relation to principle (b) in SM v LFDB, that is, the proportionality of the sanction to the default, I do not consider that this is to be viewed in light of how or why the default occurred. Rather, it is an assessment of whether the sanction is appropriate for the type of default that is the subject of the unless order. I note that previous cases have upheld unless orders that strike out proceedings on the basis that the breaching party failed to file documents.21

[43]   Accordingly, the relevant question is whether justice demands, in the circumstances of this case, that the breach of the unless order be excused, or whether the sanction should be upheld. As noted above, the factors to be considered include the public interest in ensuring that justice is administered without unnecessary delays and costs, the interests of the injured party particularly in terms of delay and wasted cost, and any injustice to the defaulting party.

[44]   In terms of the question of whether the breach of the unless order resulted from something the appellants should not be held responsible for, I accept that, although the unless order cannot be said to have been deliberately flouted, there were a number of failings by both the solicitor and his firm. I acknowledge (and it appears to be undisputed) that the solicitor suffered physical and mental health issues that resulted in him being unable to comply with the unless order. But the fact remains that he failed to inform his employers in sufficient time that he was experiencing difficulties in meeting the timetable.

[45]   The partner and the firm also failed to monitor the solicitor adequately or, as soon as he became ill, to enquire whether he had matters that required attention while he was off work. However, it also appears that, while there had been signs that the solicitor was stressed and having some difficulties managing his workload, he experienced a sudden mental health crisis in response to the email from counsel for the respondents the day before the evidence was due to be filed. It was of sufficient severity for him to take two weeks off work, and then to resign. Although the firm appears to have been aware of historic mental health issues, the evidence suggests that the last major incident was in 2016, with no contemporaneous mental health problems

21     See Goodall v Sovereign Assurance Co Ltd HC Wellington CIV-2010-485-2300, 20 July 2011.

arising while he worked at the firm. I also consider it is relevant that the solicitor was experienced, therefore could be expected to work unsupervised, and he had been provided with an assistant, whom he unfortunately fell out with on 14 October 2024, to add to the calamities of that day. I agree with the solicitor’s own characterisation of what happened as a “perfect storm”, where a number of issues combined to result in the unless orders being breached. While failings by the solicitor and his firm were amongst those issues, I consider that his Honour placed too great an emphasis on those matters. I note here that, beyond those failings, he did not engage in any meaningful discussion about the other criteria in SM v LFDB, stating only that he was satisfied all the criteria were met.

[46]   I also have some concerns about the Judge’s focus on other past issues of non-compliance by the solicitor. I do not agree those instances illustrate that his firm should have been alert to concerns about the solicitor’s workload, when the firm did not know about those matters, apart from one instance which involved an order that was complied with. It is difficult to resist an inference that those earlier matters influenced the Judge’s decision beyond how they could or should have.

[47]   I agree with Ms Hughes that any amount of monitoring would not have prevented the onset of COVID-19 soon followed by the flu in this case. Having said that, I disagree with Ms Hughes’ suggestion that professional courtesy should have required the respondents’ solicitor to agree to the solicitor’s last-minute request to extend the timetable. The respondents’ counsel cannot be criticised for not acquiescing to the request when their duty was to notify their client of the request, give advice and then act on their clients’ instructions.

[48]   It is also relevant, in my view, that mental unwellness is a matter that may be invisible and, unfortunately, continues to carry stigma. Accordingly, it is understandable that a practitioner might delay raising such issues with an employer. The wellbeing of the legal profession is a matter that has in recent times become of concern and the judiciary is now aware and sympathetic (or should be) to the challenges, and fragility, that practitioners may be facing.22 Although such awareness

22     See for example letter from the Chief High Court Judge Susan Thomas and Chief District Court Judge  Heemi  Taumaunu  to  all  judges  and  judicial  officers  regarding  the  Wellbeing  of the

does not mean that any or all defaults of counsel should therefore be excused, in my view, in the circumstance of this case, it is a matter that ought to have informed the Judge’s consideration of the default. I accept, as Ms Pascoe points out, that belated compliance  does  not  cure  the  breach.  However,  I  acknowledge  the  force  of Ms Hughes’ point that the fact she was able to file the evidence in short order once the firm became aware of the default demonstrates that the solicitor had been working on the matter. I agree there is therefore no reason to think he would not have been able to meet the deadline had the “perfect storm” not taken place.

[49]   I now turn to principle (f) and the question of what does justice demand in the circumstances of this case. I consider the public interest in ensuring that justice is administered without unnecessary delays and costs is of less moment here, given that there was no trial date. Nor, as I have said, did a trial date appear likely in 2024 following the unsuccessful JSC in September. The Judge remarked that the respondents had suffered prejudice from a proceeding that should have been completed by 24 September 2024, but that date had become a JSC, which was a positive step, although ultimately settlement was not achieved. Rather, the delays caused by the appellants’ non-compliance did not result in any hearing having to be abandoned, nor cause any prejudice to the respondents’ ability to prepare their defence in time.

[50]   The delays overall in this case were also relatively minor, when the proceeding was commenced in March 2024, with the unless order breach occurring around seven months afterwards. In contrast, in SM v LFDB the relationship property proceedings had been considerably protracted, having started in early 2009, with the unless order breach occurring in 2013. Additionally, this case is rather different to Houghton v Saunders, where an unless order made in June 2019 remained unfulfilled at the time of the judgment on 11 December 2020.23 Instead, here the evidence was filed only six days after it should have been. Although I accept that the conduct of the appellants’ lawyers did result in unnecessary delays, it is also hard to see that any unnecessary costs also resulted. It is also the case that greater delay has been caused by the hearing

Profession” (26 July 2023); and Aaron Jarden and others The mental health and wellbeing of the New  Zealand legal profession  (Center for Wellbeing Science, the University of Melbourne,    28 March 2024).

23 Houghton v Saunders [2020] NZCA 638 at [84].

of the strike-out application which did not take place until February 2025, followed by a reserved decision in April 2025. The alternative of excusing the six-day delay and providing an equivalent, (or more generous) extension to the respondents to file their evidence would in my view have likely resulted in the proceeding being determined more quickly than the protracted course that has followed.

[51]   Additionally, I consider the impact on the respondents to be overstated. While the appellants’ failure to comply with court directions no doubt caused some inconvenience to Mr Thomas, the actual delay was only six days. In his affidavit,  Mr Thomas complains of having to “spend additional time discussing the legal implications of the plaintiff failing to comply with court directions”. To the degree that this relates to evidence, submissions and the hearing for the application to strike out the proceeding, I do not consider this to be relevant. The issue is rather the delays and costs caused by the failure to comply itself, rather than the resulting interlocutory proceeding. As Ms Hughes put it, it is always stressful to be involved in litigation but a six-day delay would not change that stress. Furthermore, given the default, the appellant could not have taken any issue with any additional reasonable time the respondents could have asked for to file their evidence to fit in with the demands of their business.

[52]   In contrast, while accepting this matter carries less weight, there has been clear injustice to the defaulting party. For a delay of six days that he had no control over, Mr Payne has had his proceeding struck out. I accept that Mr Payne does have recourse against the firm for a breach of their obligations to him. I also accept that the breach of the unless order not being caused by the party themselves does not answer the breach. However, I consider it remains a relevant consideration to what justice demands in the circumstances, particularly when there is nothing to suggest Mr Payne had any role whatsoever in this breach. It is clear that he had provided the basis of his evidence to his lawyer. Yet he has been denied a hearing.

[53]   Overall, I consider the question of what justice demands of this case leads to a finding that the breach of the unless order should have been excused and the proceedings should have not been struck out. This is so given the circumstances in which the unless order breach was caused by the onset of two bouts of illness in close

succession on top of simmering work pressures and stress, the breach was remedied swiftly, there was no hearing date put at peril, and any prejudice to the respondents was slight.

Result and costs

[54]   I consider the appellants have satisfied the Court that the Judge erred in striking out the proceeding for non-compliance with the unless order. The order striking out the proceeding is set aside and the proceeding is reinstated.

[55]   As the successful party, the appellants are entitled to costs. The parties should endeavour to agree to costs, otherwise counsel may file short memoranda (no more than five pages) within 20 working days, and I will determine costs on the papers.

Grau J

Solicitors:

Legal Solutions & Carrington Ussher, New Plymouth for Appellants Nicholsons Lawyers, New Plymouth for Respondents