Saito Offshore Pty Limited v Wing Hung Printing Company Limited HC Auckland CIV 2008-404-4621

[2010] NZHC 1504

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2008-404-004621

BETWEEN  SAITO OFFSHORE PTY LIMITED Plaintiff

ANDWING HUNG PRINTING COMPANY LIMITED

First Defendant

ANDADAPT IDENTIFICATION, LLC Second Defendant

ANDSHORE TO SHORE BV Third Defendant

Hearing:         11 May 2010

Appearances: R J Hollyman for the Plaintiff

M C Sumpter for the Defendants

Judgment:      11 May 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSEN

Solicitors/Counsel:

B Allen, Davenports West, Henderson –  [email protected]

R J Hollyman, Barristers, Auckland –[email protected]

M Sumpter, Chapman Tripp, Auckland –[email protected]

SAITO OFFSHORE PTY LIMITED V WING HUNG PRINTING COMPANY LIMITED AND ORS HC AK CIV 2008-404-004621  11 May 2010

[1]      The plaintiff applies for an order that the defendants file a further statement of  defence,  one which  complies  with  Rule 5.48  of  the  High  Court  rules.    The defendants oppose.  They want the plaintiff’s application to be adjourned until the Court of Appeal releases its decision on the defendants’ protest to jurisdiction.

[2]      The defendants’ statement of defence is clearly inadequate.  It suffers for all those reasons identified by and as attached in the schedule to plaintiff’s counsels’ submissions.  But, should the defendants be required to file a statement of defence in circumstances where, often any statement of defence at all is not required until a protest to jurisdiction has been dealt with?   In this case the protest has been dealt with, by Harrison J by his judgment dated 29 June 2009.   He dismissed the defendants’ application to dismiss the proceeding and he directed full statements of defence be filed.

[3]      The defendants filed an appeal of that decision on 24 July 2009.  The appeal is yet to be heard on the 6th or 7th July.

Opposition to Application

[4]      Mr  Sumpter  submits  the  proceeding  is  focussed  on  the  plaintiff’s  own pleading.   It is a proceeding only about jurisdiction.   The Court of Appeal will consider whether the plaintiff has a good arguable case on its seven causes of action. The statement of defence is not, he submits, part of that enquiry.  Her further submits this application is a tactical manoeuvre ahead of the appeal hearing in the hope the defendants’ pleadings may bolster the plaintiff’s case against the appeal challenge.

[5]      The defendants have filed a statement of defence.   The defence filed in response to plaintiff’s amended statement of claim filed on 17 April 2009 was, Mr Sumpter advises, filed in lieu of a contested application for a stay of the proceeding. Mr Sumpter advises that the foreign defendants have no place of business in New Zealand and would be put to considerable expense and inconvenience if compelled to make changes to their current defence at this stage.

Considerations

[6]      It is clear as Mr Hollyman advises that a stay of proceedings pending appeal was consented to by the plaintiff on condition that the defendants file a substantive statement of defence by 28 August 2009.  Consent orders made on 13 August 2009 confirm that.

[7]      Apparently initially the defendants provided its defence in an attachment to a memorandum.  Later and following receipt of a consent memorandum I made orders that the defendants file a substantive statement of defence on or before 28 August

2009.  I noted that a statement of defence was to be filed without prejudice to the defendants’ protest to jurisdiction.   Later in my minute dated 4 November 2009 I noted  a  complaint  that  the  defendants  had  not  filed  a  substantive  statement  of defence as previously directed.  I directed that statement of defence to be filed within two weeks.

[8]      The defendants appear to recant on their previous agreement with the plaintiff and with the consent orders made by this Court.   The position regarding the defendants being able to pursue their protest has been preserved.  They agreed and it was ordered that a substantive defence be filed.   It is an unusual step to require a defence to be filed because of the potential to involve foreign nationals with the cost of litigation outside their own country.  However there are balancing considerations. A protest action has an ability to significantly delay the conduct of a proceeding. This proceeding was filed in July 2008.   No progress has been made since then because of the protest action.   Until the Court of Appeal decides otherwise the defendants are committed to filing a substantive statement of defence.

Result

[9]      I direct the defendants’ substantive statement of defence be filed and served by 28 May2010.  The application comes belatedly.   It is appropriate that costs lie where they fall.

Associate Judge Christiansen