Sayes v Sayes

[2012] NZHC 2091

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2009-404-005931 [2012] NZHC 2091

BETWEEN  MAURINE DOROTHY SAYES Plaintiff

ANDSHELLEY ANN SAYES AND SAYES FAMILY TRUSTEE COMPANY LIMITED

First Defendants

ANDMICHAEL WENTWORTH SAYES Second Defendant

Hearing:         16 August 2012

Counsel:         H Sumich for Plaintiff

CR Eric for First Defendants
No appearance for Second Defendant

Judgment:      16 August 2012

JUDGMENT OF ASHER J (on examination of witness)

Solicitors/Counsel:

H Sumich, PO Box 3799, Shortland Street, Auckland 1140. Email:  [email protected]

Glaister Ennor, PO Box 63, Shortland Street, Auckland 1140. Email:  [email protected]

Copy to:

M Sayes, 106 Holdens Road, Clevedon, RD5, Papakura, Auckland 2585. Email:  [email protected]

SAYES V SAYES HC AK CIV-2009-404-005931 [16 August 2012]

[1]      These Property (Relationship) Act 1976 proceedings are set down for hearing for one week on 27 August 2012.  The plaintiff applies for an order that a witness, Warren Geoffrey Priest, be examined prior to trial and for the abridgement of time.

[2]      I note Mr Sayes did not appear today.  However, he has sent an email to the Court advising that he is happy to have the matter determined on the papers by the Duty Judge after considering his notice of objection.

[3]      Mr Priest is a valuer and has valued relevant properties at various times.  He is the only expert valuer who has filed an affidavit and who is to be called.  It was not anticipated that he would be called by counsel for the plaintiff.  I note that under r 9.74 of the High Court Rules a person is only to be cross-examined on an affidavit if notice is given of a wish to cross-examine.  Notice can be given up to no less than three working days before the commencement of the trial.

[4]      It was assumed by the plaintiff that Mr Priest was not required for cross- examination. This was because:

(a)       there had been no indication that he would be cross-examined; and

(b)there had been no contrary valuation evidence filed by Mr Sayes, the second  defendant.    The  first  defendant  trustees  are  abiding  the decision of the Court.

[5]      At a pre-trial conference on Wednesday 8 August 2012, Mr Sayes gave an indication that he would wish to cross-examine Mr Priest.  When counsel checked with Mr Priest it turned out that he already had arranged an overseas trip between Saturday 25 August and Saturday 1 September 2012.  Mr Priest is recovering from hip surgery and the break has been long planned and of considerable importance to him.

[6]      Although it would have been prudent for Mr Priest to have cross-checked his travel arrangements with the plaintiff’s lawyers, given the circumstances that I have outlined I consider it understandable that arrangements were made for this overseas

trip.  I also accept that it would be a very harsh outcome to require him to be present, and the prospect of vacating the fixture is one that would be viewed with the utmost concern by the plaintiff. These proceedings have been extant since 2009.

[7]      I note the nature of Mr Priest’s evidence.  He is an expert.  His evidence will be relatively self-contained.  It would not be expected to be cross-dependent on other contested evidence that will be given during the trial.

[8]      Mr Sayes has set out clearly his reasons for opposition, but I do not discern in those  reasons  any factor  which  will  lead  to  an  injustice  if  Mr  Priest  gives  his evidence early.

Result

[9]      I therefore order that the evidence of Warren Geoffrey Priest is to be taken by way of examination on oath before a Judge, Registrar or Deputy Registrar, or before a person that the Court appoints.   The time for the hearing of the application is abridged by 24 hours.

[10]     The Registrar is to allocate a date and time for the hearing of Mr Priest’s evidence and notify the parties of that date and time.  It would be prudent to allow two hours.

[11]     As a practical way forward I would then suggest Ms Sumich obtain a date this  morning  from  the  Court  if  possible,  and  then  communicate  by  email  with Mr Sayes advising him of the date and checking his availability.  Obviously efforts should be made to accommodate his convenience, as well as that of Mr Priest.

[12]     If there are any difficulties the plaintiff may convene a telephone conference on three hours’ notice.

……………………………..

Asher J