Radisich v Taylor HC Auckland CIV 2007-404-3276

[2007] NZHC 2000

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2007-404-3276

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IN THE MATTER OF     The Property (Relationships) Act 1976

BETWEEN  ANTHONY STEVEN RADISICH Appellant

AND  DIANNE FAYE TAYLOR Respondent

Hearing:         16 August 2007

Appearances: D A Hollings QC and P Spring for the Appellant

A E Hinton QC for the Respondent

Judgment:      16 August 2007

ORAL JUDGMENT OF BARAGWANATH J

Solicitors:

Keegan Alexander, PO Box 999, Auckland

Lee Salmon Long (J Long), PO Box 2026, Shortland Street, Auckland

Counsel:

A E Hinton QC, Auckland

D A Hollings QC, Auckland

RADISICH V TAYLOR HC AK CIV 2007-404-3276  16 August 2007

[1]      This appeal is listed for a substantive hearing tomorrow.

[2]      Late   this   afternoon   I   received   from   counsel   for   the   respondent   a memorandum expressing concern that submissions prepared  for  the  appellant  in reply differed extensively from the initial submissions and were, in effect, entirely new submissions.

[3]      At telephone conference, Ms Hinton QC advised me that other commitments prevent her from doing justice to her client in relation to the new points raised. When the conference first began, in the absence of Ms Hollings QC, Mr Spring advised me that his client offered no objection to the application.  But, as Ms Hinton had not had the opportunity fully to consider the appellant’s reply submissions, I adjourned the conference to enable her to do so.  When the conference resumed, Ms Hollings was present to lead Mr Spring.  Ms Hinton confirmed her inability to be properly prepared.

[4]      Ms  Hollings  advised  me  that  she  and  Mr  Spring  had  received  altered instructions and now wished to oppose the adjournment.  I am not minded to permit a change of position at such a late stage in the piece.

[5]      There is no obligation under the rules for the appellant to file any reply and my untutored impression of the reply submissions is that they are rather a more refined expression of the main contentions of the appellant than a bundle of new material.   But I am not prepared to gainsay what I am told by Queen’s Counsel as to her position and the potential effect on her client.  I therefore adjourn tomorrow’s fixture and invite the Registrar to make a fresh application one day fixture as soon as that can be managed.

[6]      As to costs, there are opposing submissions.  Ms Hollings submits that the respondent  is  receiving  a  dispensation  and  should  be  ordered  to  pay  costs. Ms Hinton argues that the adjournment has been occasioned by an effective change in position by the appellant.  In these circumstances, I reserve the issue of costs to the Judge who will hear the matter and be able to determine which version is to be preferred.

[7]      The adjournment application has taken an hour.

W D Baragwanath J