Rebnik Properties Limited v Dobbs
[2020] NZHC 2187
•26 August 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV 2015-404-000964
[2020] NZHC 2187
BETWEEN REBNIK PROPERTIES LIMITED
Plaintiff
AND
TROY JOHN DOBBS
First Defendant
AND
ALUMINIUM REPAIRS LIMITED
Second Defendant
CIV 2015-404-001602 BETWEEN
ALUMINIUM REPAIRS LIMITED
First PlaintiffAND
TROY JOHN DOBBS
Second Plaintiff
AND
MICHAEL GRANT RING
Defendant
Hearing: 24 August 2020 Appearances:
D R Bigio QC and A J Steel for the Plaintiff/Defendants
C R Andrews and K T O’Halloran for the Defendants/Plaintiffs
Judgment:
26 August 2020
JUDGMENT OF CAMPBELL J
This judgment was delivered by me on 26 August 2020 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
D R Bigio QC, Shortland Chambers, Auckland A J Steel, Barrister, Auckland
McVeagh Fleming, Auckland
REBNIK PROPERTIES LIMITED v DOBBS [2020] NZHC 2187 [26 August 2020]
Introduction
[1] These two proceedings arise out of construction work carried out by Mr Dobbs (he says on behalf of his company Aluminium Repairs Ltd (ARL)) on a house that belonged to Mr Ring. Mr Ring says that Mr Dobbs overcharged him.
[2] In the first proceeding Mr Ring’s assignee, Rebnik Properties Ltd (Rebnik), sues Mr Dobbs (or ARL in the alternative) for the overcharging. In the second proceeding ARL (or Mr Dobbs in the alternative) sues Mr Ring for payment on the last two invoices rendered to Mr Ring (which Mr Ring refused to pay).
[3] I will refer to Rebnik and Mr Ring as the plaintiffs, and Mr Dobbs and ARL as the defendants.
Defendants’ application for leave to have supplementary briefs received
[4] On 14 August 2020 the defendants applied (by memorandum) for leave under r 9.8 of the High Court Rules 2016 to have two supplementary briefs of evidence received at trial. One brief is by Mr Dobbs, served 4 August 2020. The other brief is by an expert quantity surveyor, Mr Hanlon, engaged by the defendants. It was served 7 August 2020. The defendants’ application was supported by an unsworn1 affidavit from Mr Dobbs addressing the delay in serving the two briefs.
[5] The plaintiffs opposed the application, save for paragraphs 61 to 64 of Mr Dobbs’ brief. The plaintiffs served two affidavits in support of their notice of opposition. The affidavits were from two quantity surveying experts that the plaintiffs had engaged, Mr Johnson and Mr Weir, each of whom had earlier provided expert briefs. The import of their affidavits was that they would not have sufficient time to review all the new material in the supplementary briefs before trial, nor could a joint expert report be completed before trial if the new material was to be considered.
[6] The trial started on 24 August 2020. After the plaintiffs’ opening, I heard submissions on the defendants’ application. The submissions were detailed
1 It was unsworn because of the then COVID-19 Alert Level 3 restrictions. The plaintiffs took no issue with this.
(necessarily so). They took much of the first day. During the course of the day the plaintiffs withdrew their opposition to some further paragraphs of Mr Dobbs’ brief, namely paragraphs 3 to 17. But that left the balance of Mr Dobbs’ brief (paragraphs 1 to 2 and 18 to 60), and the entirety of Mr Hanlon’s brief (12 pages plus several schedules), in dispute.
Legal principles
[7]Rule 9.8 provides:
9.8 Supplementary briefs
(1)A party wishing to offer a supplementary brief must serve it as soon as possible.
(2)The acceptance and use of the supplementary brief in court will be at the discretion of the trial Judge.
[8] The focus of the parties’ submissions was on r 9.8(2), and the factors going to the Court’s discretion thereunder. But r 9.8(1) is not to be overlooked. A party must serve a supplementary brief as soon as possible. If the party does not, that will be a factor relevant to the exercise of the r 9.8(2) discretion.
[9] As to that discretion, the applicable principles are correctly summarised in the commentary on rule 9.8 in McGechan on Procedure, as follows:2
(a)Leave will necessarily depend on the particular facts and circumstances of the case.
(b)A balancing of where lies the overall justice of the case is required. This involves weighing the prejudice to the party that served the supplementary brief if leave is refused against that to other parties if leave is granted.
(c)That the supplementary brief improves the evidential case of the party seeking to offer it is not, without more, a basis for refusing leave.
2 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR9.8.02].
(d)The prejudice may be especially significant where the supplementary brief is provided at a late stage in the proceeding.
(e)Granting an adjournment to allow more time to respond, and/or ordering costs that reflect the extra work required in responding to the supplementary evidence may minimise prejudice resulting from a grant of leave.
[10] The prospect of an adjournment to cure any prejudice can be put to one side. The defendants did not propose such a course. Even if they had, I would not have adjourned the trial, given the procedural background that I set out below.
[11] If leave is granted under r 9.8(2), that does not necessarily mean that the entirety of the supplementary brief will be received into evidence. The supplementary brief must comply with the usual rules applying to briefs. For example, briefs must not contain evidence that is inadmissible, must not contain material in the nature of a submission, and must avoid repetition: r 9.7(4). Those constraints have some application to these briefs.
[12] Mr Bigio QC, for the plaintiffs, referred me to the judgment of Jagose J in SCC (NZ) Ltd v Samsung Electronic New Zealand Ltd.3 There his Honour addressed the proper scope of reply briefs. He said that such briefs must be strictly in reply, responding only to relevant matters raised for the first time in the briefs to which they are replying. They are not an opportunity for the witness to deny the truth of the opponent’s proposed evidence by restating or enlarging on facts already set out in the witness’s earlier brief.4 Mr Bigio submitted that the defendants’ supplementary briefs breached these strictures.
[13] As I explain later, there is some substance to this criticism, especially as regards parts of Mr Dobbs’ supplementary brief. But Jagose J was not addressing the exercise of the discretion under r 9.8(2). The party seeking leave under r 9.8(2) will sometimes be wanting to adduce a supplementary brief that covers matters that should
3 SCC (NZ) Ltd v Samsung Electronic New Zealand Ltd [2018] NZHC 2780.
4 At [204]–[205].
have been in the witness’s initial brief. A balance of the overall justice is then required. That the brief goes beyond matters strictly in reply will be relevant to, but not determinative of, that balancing exercise.5
Procedural background
[14] The construction work that gave rise to this dispute was carried out from about April 2011 to February 2014. Rebnik commenced its claim in May 2015. Schedule 1 to Rebnik’s statement of claim particularised the scope of the work that it alleged had been carried out. Schedule 3 particularised the alleged fair and reasonable price for that work. By their initial defence, dated 9 July 2015, the defendants did not clearly identify that there was an issue as to the scope of work alleged by Rebnik. They did of course put in issue the fair and reasonable price for that work.
[15] At the same time as filing their defence, the defendants commenced the related proceeding against Mr Ring for the unpaid invoices. It is not necessary for me to refer to the pleadings in that proceeding.
[16] A trial for the two proceedings was initially scheduled for 3 July 2017. Prior to that trial the plaintiffs served a brief from Mr Ring, a brief from a building and construction expert, Mr Cartwright, as to the scope of work that had been carried out, and a brief from a quantity surveying expert, Mr Johnson. The defendants served a brief from Mr Dobbs that, among other things, said that Mr Cartwright had very substantially underestimated the extent, nature and scope of the work that had been carried out. The defendants also served a brief from their expert quantity surveyor, Mr Hanlon.
[17] On 5 June 2017 the parties filed a joint memorandum seeking the vacation of the July 2017 fixture. The memorandum recorded that: the parties disagreed over whether the defendants had put the scope of works in issue in their pleading; that in any event Mr Dobbs had served a brief that contained 39 pages of detailed disputes with the scope of works pleaded by the plaintiffs; that the defendants would have to file an amended statement of defence; that the plaintiffs’ experts would not be able to
5 An example is Signal v Berry [2016] NZHC 1126.
review Mr Dobbs’ evidence in time for the trial; and that the trial time would be inadequate.
[18] Accordingly, the Court vacated the July 2017 trial. A new trial was scheduled for 2 July 2018. In advance of that trial the plaintiffs served the following further briefs: a reply brief of Mr Ring dated 2 May 2018, a reply brief of Mr Johnson dated 4 May 2018, and a brief from another expert quantity surveyor, Mr Weir, dated 4 May 2018.
[19] The three expert quantity surveyors (Messrs Johnson, Weir and Hanlon) conferred on 14 June 2018. They prepared a draft joint report. A marked-up final version of that report was circulated by Mr Hanlon to the other experts on 26 June 2018. For reasons that were not explained to me, the experts had not further conferred, and had not signed any expert report, by the time that the defendants’ application was argued.6
[20] Shortly before the 2 July 2018 trial the plaintiffs’ then counsel became ill. This led to that trial being vacated. A new trial was scheduled for 5 August 2019. Unfortunately, that also had to be vacated, this time because Mr Dobbs was unwell.
[21] On 21 August 2019 the parties filed another joint memorandum. This recorded the defendants’ position on several matters. These included:
(a)The defendants intended and wished to produce at trial supplementary briefs from Mr Dobbs and Mr Hanlon, and this had been signalled to the plaintiffs’ counsel in July 2018.
(b)Those supplementary briefs had not then been completed because “they are dependent on Mr Dobbs completing his brief first”, and Mr Dobbs’ medical issues had prevented him “certainly this year” (2019) from doing that.
6 A signed joint report was handed up on the second day of the trial.
(c)Subject to Mr Dobbs’ health improving, the supplementary briefs should be able to be provided well in advance of the re-scheduled trial without any prejudice to the plaintiffs.
[22] The parties sought a direction, by consent, that the defendants serve any supplementary briefs not later than three months before trial. Associate Judge Bell issued directions following that memorandum. The Judge allocated a new trial date of 24 August 2020. He did not make any direction about the defendants’ service of supplementary briefs, but nothing turns on the lack of a direction.
[23] Under the direction that the parties had sought, the defendants should have served the supplementary briefs by 24 May 2020. This would have given the plaintiffs 13 weeks before the trial to review the briefs. Mr Dobbs’ brief was served on 4 August 2020, Mr Hanlon’s on 7 August 2020. This was less than three weeks before the trial.
Reasons for delay
[24] Mr Dobbs’ affidavit explains why he could not prepare his supplementary brief by 24 May 2020 (as had been agreed in August 2019). The reasons are primarily his illness, the COVID-19 lockdown, and a flood at his business. I am satisfied that those reasons provide just cause for that particular delay.
[25] However, Mr Dobbs’ affidavit does not address the earlier delays in preparing his supplementary brief. In that respect, I note:
(a)In part his brief responds to the scope of works in Mr Cartwright’s brief. Mr Dobbs had already responded to Mr Cartwright’s brief before the July 2017 trial. The joint memorandum seeking vacation of that trial recorded that Mr Dobbs’ brief contained 39 pages of detailed disputes with the scope of works pleaded by the plaintiffs.
(b)In part his brief responds to Mr Ring’s reply brief, which was served on 2 May 2018, and Mr Johnson’s reply brief, which was served on 4 May 2018.
(c)The 21 August 2019 joint memorandum recorded that the defendants had in July 2018 first signalled an intention to serve supplementary briefs.
(d)No adequate explanation has been given for why his supplementary brief was not prepared and served in the latter half of 2018 (I accept that the medical evidence shows that Mr Dobbs was unwell from early 2019.)
[26] Mr Dobbs’ affidavit also does not explain the delay in serving Mr Hanlon’s supplementary brief. Mr Hanlon has not made any affidavit explaining the delay.
[27] Mr Andrews, for the defendants, submitted that the reason for the delay was that Mr Hanlon’s supplementary brief was dependent for its preparation on Mr Dobbs’ brief. I do not accept that submission. Mr Hanlon does not appear to rely on Mr Dobbs’ supplementary brief in the body of his brief. Mr Hanlon has summarised some of Mr Dobbs’ new evidence in sch 2S that Mr Hanlon has annexed to his supplementary brief. But that simply repeats Mr Dobbs’ evidence in another form.
[28] Mr Hanlon does not say, anywhere in the supplementary brief, that he is revising his cost estimate for the work in reliance on Mr Dobbs’ new evidence.7 It appears therefore that Mr Hanlon’s expert opinion on cost is unchanged by the content of Mr Dobbs’ supplementary brief. Mr Andrews confirmed that that was his understanding. He said that this was probably because Mr Hanlon had already (when preparing his earlier cost estimate) had the benefit of receiving this information from conversations with Mr Dobbs. Mr Bigio made a similar suggestion during his submissions.
[29] If Mr Hanlon had the benefit of this information from Mr Dobbs when preparing his earlier estimate (which was either when his brief was served on 17 May 2017, or at latest when expert conferral took place in June 2018), that would suggest that Mr Dobbs was also in a position to make a supplementary brief about these matters
7 This is subject to an immaterial exception for re-categorising one cost item (tiles) in light of a clarification in Mr Dobbs’ supplementary brief.
much earlier than he did (and, in particular, before the illness that has more recently affected him). This reinforces my view that Mr Dobbs has not adequately explained why his supplementary brief was not prepared and served in the latter half of 2018.
[30] That the delay is not adequately explained is, however, merely a relevant factor in the exercise of my discretion under r 9.8(2). It is not determinative.
Should Mr Dobbs’ supplementary brief be received?
[31] I now turn to consider where the balance of justice lies. I start with Mr Dobbs’ brief. The paragraphs that remain in dispute cover a variety of topics. I will deal with them by topic, as counsel did. As I do so, I will also identify any other issues that arise, such as with admissibility.
Paragraphs 18 to 20
[32] In these paragraphs Mr Dobbs deals with references to licenced building practitioners on ARL’s website. Mr Dobbs says he is responding to Mr Ring’s initial and reply briefs. On its face, then, this material could have been in Mr Dobbs’ initial brief. But it was not suggested that the plaintiffs would suffer any prejudice from this evidence being received. It is not evidence that the plaintiffs’ experts appear likely to have to consider. These paragraphs may be received.
Paragraphs 21 to 26
[33] These paragraphs respond to Mr Ring’s evidence on concrete channel cutting work carried out by Mr Dobbs. In part Mr Dobbs provides more detail as to the constraints that he was under in carrying out that work, and the methodologies adopted.
[34] I accept Mr Bigio’s submission that Mr Dobbs could have provided this evidence in his initial brief. That is clear on the face of some of the paragraphs. But it is difficult to see how the plaintiffs’ experts could be seriously prejudiced by having to consider this evidence.
[35] That said, only paragraphs 22 and 23 may be received. Paragraphs 21, 25 and 26 are objectionable as submission, and paragraph 24 on its face merely repeats evidence in Mr Dobbs’ initial brief.
Paragraph 27
[36]This paragraph clarifies the details on one invoice. It may be received.
Paragraphs 28 to 60
[37] These paragraphs purport to clarify or correct certain matters that Mr Dobbs says were raised by the plaintiffs’ expert Mr Johnson in his reply brief. In general terms these paragraphs provide explanations or more detail of the work undertaken by Mr Dobbs, particularly methodologies.
[38] I accept Mr Bigio’s submission that much of this material could have been included in Mr Dobbs’ initial brief. This is because much of it appears to respond to the scope of work prepared by the plaintiffs’ building and construction expert Mr Cartwright. As I set out earlier, Mr Dobbs responded to that scope in the brief that he served before the scheduled 2017 trial.
[39] Mr Andrews showed me that some of these paragraphs were linked to questions raised or assumptions made by Mr Johnson in his reply brief. Even so, Mr Dobbs could have provided his responses in the latter half of 2018, as I explained earlier.
[40] A general theme in the defendants’ submissions was that it was fair for Mr Dobbs to provide this sort of evidence (particularly on methodologies) through a supplementary brief. This, it was said, was because the plaintiffs’ allegation of overcharging was generalised, and it was not until after the expert briefs had been exchanged that Mr Dobbs was able to see or understand particular parts of the scope of work that might have been misunderstood by the experts. I reject that submission. It does not accord with the pleadings. Nor does it accord with how Mr Dobbs appears to have approached his initial brief before the scheduled 2017 trial.
[41] Nonetheless, Mr Dobbs’ delay, while a factor, is not determinative. Of more weight is the extent to which the plaintiffs will be prejudiced by the lateness of this evidence. In that respect I note that Mr Johnson’s affidavit says that it is the new material in Mr Hanlon’s supplementary brief (not Mr Dobbs’ supplementary brief) that he would not have time to review. Similarly, Mr Bigio’s submissions on Mr Dobbs’ brief focussed on the extent to which Mr Dobbs was responding to briefs that the plaintiffs had served years earlier. There was little examination of possible prejudice. The paragraphs seem to me to cover matters that an expert quantity surveyor could take into account in the time that the plaintiffs’ experts will have.
[42]I will allow paragraphs 28 to 60 to be received, with the following exceptions:
(a)Paragraph 32; second sentence of paragraph 40; last two sentences of paragraph 44; and paragraph 59 (inadmissible opinion evidence).
(b)Paragraphs 48 and 49 (mere repetition of earlier evidence).
(c)Paragraph 50 (submission).
Should Mr Hanlon’s supplementary brief be received?
[43] Mr Hanlon’s brief contains a significant amount of material. There is no satisfactory explanation for its being served so late.
[44] But whether Mr Hanlon’s supplementary brief should be received depends primarily, though not exclusively, on the prejudice that the plaintiffs might suffer, in the form of the inability of the plaintiffs’ experts to review and consider the new material. It is too early for me to assess this without first hearing some (or perhaps all) of the plaintiffs’ expert evidence. I acknowledge that Mr Johnson and Mr Weir have both deposed that they will not have time to review it. But at present I have no understanding of the nature of the disagreements between the experts, and so lack context to assess the significance of the matters that Mr Hanlon wishes to raise.
[45]I therefore defer my decision on Mr Hanlon’s brief.
Result
[46] Mr Dobbs’ supplementary brief may be received, except for the following paragraphs: 21, 24, 25, 26, 32, 40 (second sentence), 44 (last two sentences), 48, 49, 50 and 59. I defer my decision on Mr Hanlon’s brief.
[47] The plaintiffs are entitled to costs on the application, regardless of the substantive result of the proceedings. The defendants were seeking an indulgence. Three quarters of a day are allowed as the hearing time for the application.
Campbell J
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