Salmons v Trendy Homes Limited (in liquidatin)

[2013] NZHC 2854

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-003289 [2013] NZHC 2854

IN THE MATTER             of the Land Transfer Act 1952

AND

IN THE MATTER             of Caveat X5995072.1

BETWEEN  FRANK WILLIAM SALMONS Applicant

ANDTRENDY HOMES LIMITED (IN LIQUIDATION)

First Defendant

MUNROE DEVELOPMENTS LIMITED Second Respondent

Hearing:                   29 October 2013 (by telephone) Counsel:          G Bogiato for Applicant/Respondent

A Gilchrist for Second Respondent/Applicant

Judgment:                29 October 2013

Reasons:                  30 October 2013

JUDGMENT OF VENNING J Application for adjournment etc.

This judgment was delivered by me on 30 October 2013 at 11.00 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           G Bogiatto, Auckland

Patel Nand Legal, Auckland

Copy to:            A Gilchrist, Auckland

SALMONS v TRENDY HOMES LTD (IN LIQ) [2013] NZHC 2854 [29 October 2013]

[1]      The Registrar referred this file to me as Executive Judge.  An application the caveat described in the papers lapse is to be heard as a fixture on Thursday, 31

October 2013.

[2]      The second respondent has filed an application seeking:

1.        Adjournment of Hearing;

2.That Radhe Krishna Nand be allowed to continue to act for  the second respondent;

3.        That a deponent be available for cross-examination at hearing.

[3]      The applicant opposes the adjournment and the suggestion that Mr Stirling be required for cross-examination at the hearing.

[4]      I convened a telephone conference.  After hearing from counsel I made the following orders:

(a)      Granting leave to Mr Nand to remain acting for the second respondent as solicitor on the basis that the second respondent is represented at the hearing by counsel.

(b)      Declining the application for adjournment of the fixture.

(c)      Declining the request that Mr Robert Stirling be available for cross- examination on his affidavit.

[5]      These are my brief reasons for the above ruling.

[6]      The fixture was allocated on 10 September.  Although the applicant filed and served an amended application on 15 October 2013, the additional matters should not be difficult to respond to.   The applicant raised additional matters, including

arguments that:

The  original  caveat  was  obtained  by  an  entity  which  had  no  caveatable interest or has subsequently been struck off the Register of Companies.

The second respondent has been guilty of delay, laches and acquiescence.

The second defendant is estopped.

[7]      None  of  the  above  matters  should  come  as  any  surprise  to  the  second respondent.  While Mr Bogiato’s submissions were not exchanged until 2.00 pm last Friday I consider the second respondent has had sufficient time to prepare for the hearing scheduled for Thursday.

[8]      Although Mr Nand has sworn an affidavit to describe his dealings with Mr Stirling it is reasonable in the circumstances to permit him to remain as solicitor on record.   I do not consider it to be in the interests of justice to require the second respondent to incur the further unnecessary expense of instructing new solicitors when counsel will appear.

[9]      Mr  Stirling  should  not  be  required  for  cross-examination.    This  is  an application in relation to a caveat.  It is not a substantive hearing.  It is very rare that applications  for  cross-examination  on  such applications  will  be permitted.   The evidence in issue apparently relates to Mr Stirling’s dealings with Mr Nand in 2010. It has little direct relevance to the matter in issue in this proceeding.

[10]     For those  reasons  the applications  before the  Court  were disposed  of  as above.

[11]     The fixture will proceed on 31 October 2013

[12]     The costs of the application and the telephone conference hearing are to lie where they fall.

Venning J