Samson Corporation Limited v Ryan Investment Group Limited

[2019] NZHC 3036

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-2538

[2019] NZHC 3036

BETWEEN

SAMSON CORPORATION LIMITED

Plaintiff

AND

RYAN INVESTMENT GROUP LIMITED

First Defendant

ADITYA SUDAN
Second Defendant

KANIKA SUDAN

Third Defendant

Hearing:	On the papers
Counsel:	S McAnally for the Plaintiff
Judgment:	20 November 2019

JUDGMENT OF GAULT J

This judgment was delivered by me on 20 November 2019 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 2016.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr S McAnally, Keegan Alexander, Auckland

SAMSON CORPORATION LTD v RYAN INVESTMENT GROUP LTD [2019] NZHC 3036 [20 November 2019]

[1]    The plaintiff has filed proceedings on 12 November 2019 and applies for summary judgment and an order shortening the time for service prescribed under     r 12.7 from not less than 25 working days before the date of the hearing to not less than 10 working days. The Registry has referred the application to me for directions prior to listing the first call date of the application.

[2]    An application to enlarge or shorten time may be made ex parte, but the Judge may require that it be on notice to the other party.

[3]    The case involves a disputed cancellation of a lease. The defendant has resumed occupation and the plaintiff seeks possession. The grounds for shortening time set out in the application are that the interests of justice favour the shortening of time because (i) the defendants are in unlawful possession of commercial premises thereby preventing the plaintiff leasing them to a third party, and (ii) the issues in dispute are very narrow and such that a shortened period of time is both sufficient and reasonable in the circumstances. The application relies on provisions of the High Court Rules, Robert Jones Investments Ltd v Gardner1 and Permanent Nominees Ltd v McIntyre.2 The affidavit in support of summary judgment does not specifically address the application to shorten time. It explains the claim and concludes that the plaintiff wants the premises back so it can find a new tenant that pays its rent. There is no memorandum in support of the application to shorten time.

[4]    The time for service in r 12.7 is mandatory but the Court may, in its discretion, extend or shorten the time on such terms (if any) as the Court thinks just. The two cases relied on in the application are examples where time was abridged but they do not suggest that abridging time should be in any way routine. In Robert Jones Investments Ltd v Gardner, time was abridged in a summary judgment application where only the notice of proceeding had not been served within the time limit for the hearing. It had been served one week after the other documents. The Court held that the defendant had received all the necessary information in time. In Permanent Nominees Ltd v McIntyre, time had already been abridged – the judgment relied on

1      Robert Jones Investments Ltd v Gardner (1988) 1 PRNZ 241 (HC).

2      Permanent Nominees Ltd v McIntyre (No 2) (1992) 6 PRNZ 339 (HC).

merely deals with the issue of considering the defendant’s evidence in light of the abridged timeframe to oppose.

[5]    As the authors of McGechan on Procedure state, only in very special circumstances will the Court be prepared to shorten the time allowed in the rules for a hearing in the matter.3 That applies to the time prescribed under r 12.7 in relation to summary judgment. Cases of genuine urgency where the defendant still has a reasonable time to oppose may well justify abridging time in the interests of justice.

[6]    I do not consider that the two grounds set out in the application justify abridging time in this case. Accepting the plaintiff is prevented from leasing the premises to a third party, that of itself does not warrant abridging time for service of its summary judgment proceedings under r 12.7. There is no suggestion, for example, of a threat to the premises. Claiming that the issues in the proceeding are narrow or straightforward is also insufficient of itself to warrant abridging time under r 12.7. That may be a relevant factor if there were grounds for urgency.

[7]    Especially if the applicant is seeking an ex parte order before the first call date is   inserted  in   the  service  copy  of  the   application   for   summary   judgment,   a memorandum in support is expected.

Result

[8]The application to shorten time under r 12.7 is dismissed.

Gault J

3      McGechan on Procedure (looseleaf ed, Thomson Reuters) at HR1.19.03.