Senior Trust Capital Limited v Holmes

[2023] NZHC 3001

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-952

[2023] NZHC 3001

BETWEEN

SENIOR TRUST CAPITAL LIMITED

Plaintiff

AND

CHRISTOPHER ALAN HOLMES

First Defendant

ANTHONY CHARLES RUSSELL HANNON

Second Defendant

CIV-2023-404-1141

UNDER

the Insolvency Act 2006

IN THE MATTER

of the bankruptcy of CATHERINE PHYLLIS HANNON

BETWEEN

SENIOR TRUST CAPITAL LIMITED

Judgment Creditor

AND

CATHERINE PHYLLIS HANNON

Judgment Debtor               continued….

Hearing:

10 October 2023

Appearances:

M J Tingey & A L Harlowe for Plaintiff

D A C Bullock & A W McDonald for First & Second Defendants

Judgment:

26 October 2023

JUDGMENT OF ASSOCIATE JUDGE LESTER

(leave to counsel to withdraw)

This judgment was delivered by me on 26 October 2023 at 4.30pm

pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

………………………………

SENIOR TRUST CAPITAL LIMITED v HOLMES [2023] NZHC 3001 [26 October 2023]

CIV-2022-404-2442

BETWEEN

CATHERINE PHYLLIS HANNON
First Plaintiff

CATHERINE PHYLLIS HANNON and TOMPKINS WAKE TRUSTEES
2019 LIMITED
Second Plaintiffs

AND

SENIOR TRUST CAPITAL LIMITED

Defendant

[1]    Senior Trust Capital Limited’s (Senior Trust) application for summary judgment against the defendants was heard on 10 October 2023.  Mr Bullock and  Mr Adam McDonald appeared for the defendants. Mr Tingey and Mr Morrison appeared for the plaintiff.

[2]    An evidentiary issue arose which led to me issuing a Ruling on admissibility on 12 October 2023. In respect of the major area of disputed admissibility (the reference to without prejudice material), I advised counsel during the 10 October 2023 hearing that I would have regard to that material. Given the affidavit giving rise to the evidentiary dispute had only been filed one working day before the hearing, I said Mr Bullock would have a right of reply in relation to the points Mr Tingey said arose from the without prejudice material which appeared to contradict the evidence of the defendants. Mr Bullock was to have 10 working days to respond, but I requested he use his best endeavours to comply within five working days, given I wished to have the judgment completed promptly.

[3]    Taking into account Labour Day, 10 working days from the hearing expired on 25 October 2023.

[4]    On 20 October 2023, Mr Bullock filed an application to withdraw as solicitor on the record.

[5]    As required by Rule 5.41(4) of the High Court Rules 2016, an affidavit in support of the interlocutory application to withdraw was filed. Mr Bullock’s affidavit, after introducing that he was presently solicitor on the record, said that his firm and he “… ceased acting for [the defendants] on 19 October 2023”.

[6]    Having received that application, Mr Tingey filed a memorandum, in effect, calling for Mr Bullock to explain  the  basis  upon  which  he  had  ceased  to  act.  Mr Tingey explained that he had called upon Mr Bullock to provide an explanation directly to him but Mr Bullock’s position was he did not consider it was appropriate to do so. Mr Tingey sought an order that Mr Bullock swear a further affidavit setting out why he his firm had ceased to act.

[7]    The hearing of this proceeding has not concluded. The Ruling as to admissibility, as well as timetabling, and the defendants’ affidavit also timetabled further submissions, albeit they were to be brief.

[8]    Mr Bullock does not have an absolute right to withdraw as counsel, so much is implicit in the need for there to be an application with an affidavit giving the grounds for that application.

[9]    I issued a Minute requesting Mr Bullock explain further the reasons for him ceasing to act. That Mr Bullock had ceased to act is implicit in the fact of his application and so saying he has ceased to act is no more than confirming what is obvious on the face of the application. However, given the reasons for Mr Bullock ceasing to act, may raise issues of privilege, I said Mr Bullock could file his response for the Court’s attention only. Mr Bullock has filed an explanatory memorandum and I direct that memorandum is to be sealed and not to be searched without leave of     a Judge.

[10]   I commented in another decision,1 that the better practise in an application by counsel to withdraw is for the affidavit to provide appropriate detail of the reasons why counsel has ceased to act but for that to be filed on the basis the affidavit will not

1      Baker v Libeau [2022] NZHC 2826.

be available to other parties. Counsel in those circumstances can expect the Court to respect their claim for privilege.

[11]   I am satisfied that it is appropriate that there be an order that Mr Bullock be granted leave to withdraw as counsel in this proceeding.

[12]   I am not familiar with the other proceedings in which Mr Bullock is involved but I see no reason why those matters which are not subject to a present hearing, should be any different.

[13]   Accordingly, there is leave to Mr Bullock to withdraw as counsel in the other matters named in the above intituling.

[14]   Why reasons should be given by counsel beyond simply saying they have ceased to act, may be relevant to how the Court addresses the balance of a proceeding if it is unresolved, or treats requests by the party no longer represented for further time to meet existing timetables. It is not appropriate that the Court deal with such matters in a vacuum.

[15]   The order that Mr Bullock has ceased to act as counsel will take effect upon him filing an affidavit of service of the application on the defendants.2 Mr Bullock should also advise the Court and Senior Trust of the latest address he has for the defendants, if they are different to those shown on the statement of claim.

Associate Judge Lester

Solicitors:

Couch Harlowe Kovacevich, Auckland (for Plaintiff) Lee Salmon Long (formerly for Defendants)

Copy to counsel:

M J Tingey, Barrister, Auckland (for Plaintiff)

2      Robert  Osborne  and   others   McGechan   on   Procedure   (online   ed,   Thomson   Reuters)  at [HR5.41.03].