IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE
CIV-2018-406-010
[2023] NZHC 584
BETWEEN IAIN NELLIES as liquidator Plaintiff AND
PETER MARK and JEANETTE MARK
Defendants
CIV-2021-406-013 BETWEEN
PMT 2010 LIMITED (in liquidation) First Plaintiff
IAIN NELLIES
Second Plaintiff
AND
PETER MARK and JEANETTE MARK
First Defendants
WISHEART MACNAB & PARTNERS TRUSTEE COMPANY LIMITED and
DAVID JOHN PAUL in their capacities as the trustees of the Mark Family Trust Second Defendants
Hearing: 15 March 2023 Appearances:
D P MacKenzie for Plaintiffs in both proceedings P Morten for Defendants in both proceedings
Judgment:
22 March 2023
JUDGMENT OF ASSOCIATE JUDGE JOHNSTON
NELLIES v MARK [2023] NZHC 584 [22 March 2023]
Introduction and background
[1] These two proceedings (the “2018 proceeding” and the “2021 proceeding”) are closely related and are to be heard together. Accordingly, in this judgment, references to “the plaintiffs” and “the defendants” apply to the parties in both proceedings.
[2] The proceedings involve a claim by the plaintiffs, PMT 2010 Ltd (in liquidation) (PMT) and the company’s liquidator, Mr Iain Nellies, against the defendants, Mr Peter and Mrs Jeanette Mark, who are the company’s directors, and the trustees of Mr and Mrs Mark’s family trust, for over $2,750,000.
[3] Four causes of action are pleaded. In the end, though, all are directed at clawing back monies to which the plaintiffs say they are entitled but that the defendants have received and refused to disgorge.
[4] PMT was placed in liquidation at the suit of judgment creditors (who have still not been paid) in March 2015. The first proceeding was commenced in March 2018. It is no exaggeration to say that the company’s affairs have taken an inordinately long time to be resolved.
[5] Before the Court for determination are two interlocutory applications and a case management issue:
(a)The first application is by the plaintiffs for leave to file and serve an amended statement of claim. This is not opposed. It can be dealt with very briefly.
(b)The second application is by the defendants for further discovery pursuant to r 8.19 of the High Court Rules 2016.
(c)The determination of those issues will, as counsel say, inform the next steps in the proceedings, in relation to which counsel are seeking different directions.
[6]I will deal with those matters in the order I have summarised them.
Proposed amended pleading
[7] However awkward it may be for a defendant to face amended pleadings, and however much the defendant may feel that they are having to deal with shifting goal posts, in the absence of a direction from the Court, or the passing of a close of pleadings date, and subject to the Court’s overarching discretion in relation to costs if a party is amending pleadings excessively, there is no bar to a plaintiff (or other party) amending their pleadings.1
[8] Of course, if a plaintiff amends the claim in a way that the defendant regards as objectionable, the defendant is entitled to challenge…
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- Case
- [2023] NZHC 584
- Decision Date
CaseChat Overview and Summary
The court granted the plaintiffs leave to file and serve an amended statement of claim, noting that there is no bar to amending pleadings in the absence of a direction from the court, a close of pleadings date, or excessive amendment leading to costs. The court also granted the defendants' application for further discovery, finding that the documentation sought was relevant and important, and that the discovery was proportionate. The court rejected the plaintiffs' argument that the discovery was irrelevant to the main claim and that the limitation defences were precluded by a previous judgment. The court emphasized that the defendants should have access to potentially relevant material.
The court then provided directions for the next steps in the proceedings, including deadlines for filing amended pleadings, discovery, and briefs of evidence, and a trial date. The court emphasized the need to resolve the litigation as soon as possible and reserved leave to either party to apply further in relation to the pre-trial directions if necessary. The court also reserved costs, expressing confidence that counsel would be able to resolve them.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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