RHH Ltd v Anderson (No 3) - [2018] NZHC 2045

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-2066

[2018] NZHC 2045

BETWEEN
RHH LIMITED

First Plaintiff

JOSEF CHRISTOPHER ROBERTS
Second Plaintiff

AND

SANDRINE ANDERSON

First Defendant

HELICE PROPERTIES LIMITED

Second Defendant

Hearing: 9 August 2018 at 2:15pm

Appearances:

K Davenport QC and P Devereux for the Plaintiffs L Taylor QC and E Watt for the Defendants

Judgment:

9 August 2018

ORAL JUDGMENT (No.3) OF ASSOCIATE JUDGE R M BELL

Plaintiffs’ application for interrogatories

Solicitors:
Corporate Counsel (P Devereux), Parnell, Auckland, for the Plaintiffs
Grove Darlow & Partners (TJG Allan/SF Powrie), Auckland, for the Defendants Haigh Lyon (B Molloy), Auckland, for Ms Miriam Roberts

Copy for:
Kate Davenport QC, Auckland, for the Plaintiffs Les Taylor QC, Wellington, for the Defendants
Robert Hollyman, Auckland, for Ms Miriam Roberts, non-party

RHH LIMITED v ANDERSON (No.3) [2018] NZHC 2045 [9 August 2018]

[1] This decision is on the plaintiffs' application for leave under r 7.7 of the High Court Rules to apply for the defendants to answer interrogatories after the close of pleadings date. The rule says:

No statement of defence or amended pleading or affidavit may be filed and no interlocutory application may be made or step taken after the close of pleadings date without the leave of a Judge.

[2] The close of pleadings date was 23 July 2018. On 2 August 2018, the plaintiffs filed an application for the defendants to answer interrogatories. On 3 August 2018, I directed that the application was to be heard today.

[3] The plaintiffs served a notice to answer interrogatories on 29 June 2018. That was the same day they filed an amended statement of claim. The notice required the defendants to answer within 14 working days. The time for complying with the notice accordingly expired on 19 July 2018. The defendants filed a statement of defence to the new statement of claim on 13 July 2018, but did not respond at all to the notice to answer interrogatories. No correspondence from solicitors has been put in evidence. It is common ground that there was no formal answer to the notice. At a hearing on 30 July 2018, counsel for the plaintiffs advised me that there was an outstanding interrogatories matter.

[4] I give some of the procedural background. At the start of the proceeding I directed both parties to complete discovery by 28 February 2018. The plaintiffs indicated that they would apply for non-party discovery. I directed that any interlocutory applications were to be filed and served by 16 March 2018, with notices of opposition to be filed by 29 March 2018. I directed that any further interlocutory applications would be heard at the same time as the application for non-party discovery. That was in my minute of 8 December 2017. In my minute of 15 December 2017, I gave trial directions with the close of pleadings dated fixed at 23 July 2018.

[5] The defendants filed an affidavit of documents in February…

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.

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Details

Case: [2018] NZHC 2045
Decision Date: 9 August 2018

CaseChat Overview and Summary

In the case of RHH Limited and Josef Christopher Roberts v Sandrine Anderson and Helice Properties Limited, the plaintiffs sought leave to apply for the defendants to answer interrogatories after the close of pleadings date. The plaintiffs' application was made on 2 August 2018, after the close of pleadings date of 23 July 2018, and was heard on 9 August 2018. The plaintiffs had served a notice to answer interrogatories on 29 June 2018, but the defendants did not respond. The plaintiffs argued that the interrogatories were necessary to clarify the defendants' pleadings and to address gaps in the discovery process. The defendants argued that the interrogatories were irrelevant and that the plaintiffs had not followed the proper procedural steps.

The court considered the plaintiffs' application on the basis that there might be merit in the application for interrogatories. The court noted that the close of pleadings date is intended to ensure that the pleadings have been completed and all interlocutory matters have been addressed, so that the parties can focus on preparing for the hearing. The court also noted that the plaintiffs had delayed in serving the interrogatories, which were delivered only four weeks before the close of pleadings date. The court held that the plaintiffs had taken a chance in delivering the interrogatories so close to the close of pleadings date and that it was unlikely that the defendants would have been able to provide adequate answers even if they had responded. The court further held that the plaintiffs had the opportunity to serve the interrogatories earlier in the case and that delivering them so close to the close of pleadings date was disruptive. The court accordingly dismissed the plaintiffs' application for leave to apply for interrogatories after the close of pleadings date. The court directed the parties to file memoranda on costs by specified dates.

In summary, the court held that the plaintiffs' application for leave to apply for interrogatories after the close of pleadings date was disruptive and untimely, and that the plaintiffs had not followed the proper procedural steps. The court dismissed the application and directed the parties to file memoranda on costs.

Orders