Purucker v Huebler

[2020] NZHC 578

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CIV-2018-442-58

[2020] NZHC 578

BETWEEN

MARINA ALEXANDRA PURUCKER

Plaintiff

AND

IRISH HUEBLER

Defendant

Hearing:	On the papers
Counsel:	A R Shaw and C W Martin for the Plaintiff A J D Bamford for the Defendant
Judgment:	24 March 2020

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 24 March 2020 at 12.30pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 24 March 2020

PURUCKER v HUEBLER [2020] NZHC 578 [24 March 2020]

[1]                 This is a proceeding where there has been a history of defaults with timetabling orders by the defendant. I adopt the summary of the history of the proceeding from the plaintiff’s memorandum seeking costs.

[4]Discovery was directed to have been completed by 14 March 2019.1 That deadline was not complied with.

[5]Since that direction, counsel for the defendant failed to appear for three consecutive judicial telephone conferences on 16 April 2019,  7 May 2019 and 25 July 2019.

[6]An “unless order” was made on 25 July 2019 by His Honour Associate Judge Lester requiring the defendant to make discovery by Friday  23 August 2019.2

[7]On 1 November  2019,  a  further  “unless  order”  was  made  by  His Honour Associate Judge Lester requiring the defendant to produce  a  disk   containing   the   defendant’s   bank   records   by  6 November 2019 or the defendant’s defence would be struck out.3

[8]On 17 December 2019, following application by Counsel for the plaintiffs, a third “unless order” was made requiring the defendant to complete   her   disclosure   of   certain   bank   accounts   or   by    24 January 2020 her defence would be struck out.4

[2]On 25 February 2020, Associate Judge Paulsen ordered that:5

[3]       …

(a)The defendant is to file her further affidavit of discoverable documents by no later than 11 March 2020;

(b)The defendant is to respond to the plaintiff’s application for costs (as set out in Mr Shaw’s memorandum of 18 February 2020) by 11 March 2020.

[3]No response to the plaintiff’s application for costs has been filed.

[4]                 In the absence of submissions as to costs, the plaintiff seeks that her application for costs now be ruled upon. That is appropriate.

1      Purucker v Huebler HC Nelson CIV-2018-442-58, 5 February 2019 [at 10].

2      Purucker v Huebler HC Nelson CIV-2018-442-58, 25 July 2019 at [8].

3      Purucker v Huebler HC Nelson CIV-2018-442-58, 1 November 2019.

4      Purucker v Huebler HC Nelson CIV-2018-442-58, 17 December 2019 at [6].

5      Purucker v Huebler HC Nelson CIV-2018-442-58, 25 February 2020.

[5]                 The defendant and defendant’s counsel have been extended significant latitude by the Court. The benefit of the doubt has been extended to the defendant or the defendant’s counsel on numerous occasions. Enough is enough. Costs will now be ruled upon.

[6]                 The plaintiff seeks an uplift of costs as a result of the defendant’s prolonged failure to comply with the Court’s directions. I am not inclined to order an uplift. The basic costs sought are $11,742. Those costs relate to actions that the plaintiff should not have had to take. I consider scale costs in respect of those steps to be significant recognition of the steps that the plaintiff has had to take and there is an order that:

(a)the defendant is to pay the plaintiff costs of $11,742;

(b)disbursements as sought at $550 are ordered.

Discovery

[7]                 A copy of a List of Documents on behalf of the defendant has been provided to the Court dated 12 March 2020. The List does not comply with the listing requirements in the High Court Rules 2016.6

[8]                 The order as sought by the plaintiff in respect of the non-compliant List was that the defendant be directed to serve an updated affidavit of discoverable documents no later than 19 March 2020 with there to be a direction that the affidavit be in strict compliance with the High Court Rules and the listing and exchange protocol contained in pt 2 of sch 9 to the High Court Rules.

[9]                 Had the defendant’s non-compliance with the listing and exchange protocol been minor, then I expect the plaintiff would not have taken the point, but the non-compliance is substantial.

[10]              The defendant’s compliance with her discovery obligations has been wholly unsatisfactory. There is an order that the defendant is to file and serve an updated

6      Schedule 9, pt 2.

affidavit of discoverable documents. Prior to the present virus alert, the order was going to be that the List be filed no later than Tuesday 14 April 2020 coupled with an unless order.   Once the  barriers to compliance are lifted, the defendant can expect   a strict and short time frame for compliance and an unless order if a compliant List has not been filed in the meantime. The affidavit is to strictly comply with the High Court Rules and the listing and exchange protocol contained in pt 2 of sch 9 to the High Court Rules. Again, the defendant has been afforded considerable latitude in respect of compliance with unless orders.

Associate Judge Lester

Solicitors:

C & F Legal Limited, Nelson Bamford Law, Nelson