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…

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.

Continue reading Payne v Thomas

Details

AGLC: Payne v Thomas [2025] NZHC 2864
Case: [2025] NZHC 2864
Decision Date: 30 September 2025

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Payne v Thomas involved an appeal against the New Plymouth District Court's decision to strike out a breach of contract proceeding filed by Simon Mark Payne and Challenge Trustees Limited against David Mark Thomas and Westown Agriculture Limited. The appellants argued that the District Court Judge's decision to strike out their proceeding was incorrect, given that the reason for the lawyer's failure to file evidence on time was due to his ill-health, which was explicable and outside the appellants' control. The respondents maintained that the Judge's strike-out decision was appropriate and in line with legal principles.

The legal issues in this case centered around the applicability of an "unless" order and whether the appellants' breach of the order justified the strike-out decision. The Court of Appeal examined the legal principles of "unless" orders, including the history of non-compliance, proportionality of the sanction, and the public interest in administering justice without unnecessary delays and costs. The Court also considered the interests of the injured party and any potential injustice to the defaulting party.

After analyzing the arguments and evidence presented, the Court of Appeal determined that the District Court Judge had erred in striking out the proceeding. The Court found that the breach of the "unless" order was caused by the solicitor's sudden mental health crisis, compounded by other issues, but not deliberately flouted. The Court concluded that the breach should have been excused and the proceeding reinstated, given the circumstances in which the breach occurred, the swift remedy, and the slight prejudice to the respondents. The Court set aside the strike-out order and reinstated the proceeding, with the appellants entitled to costs as the successful party.

Orders