Shawyer v Thow HC Invercargill CIV 2010 425 116

[2010] NZHC 1708

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CIV 2010 425 116

BETWEEN  JOHN COBDEN SHAWYER Applicant

ANDBRENDAN SHANE THOW Respondent

Hearing:         3 September 2010 (Heard at Christchurch)

Appearances: M J Tingey for Applicant

R A A Weir for Respondent

Judgment:      3 September 2010

ORAL JUDGMENT OF ASSOCIATE JUDGE OSBORNE

[1]      Mr  Thow  is  a  judgment  debtor.    The  applicant,  Mr  Shawyer,  has  been pursuing an examination of Mr Thow as judgment debtor which is the subject of previous Minutes in this proceeding.

[2]     Today’s hearing was allocated for the purposes of completing an oral examination which had been adjourned part heard through what I would summarise as an unsatisfactory performance by Mr Thow at his initial examination.  The Court gave clear directions as to the basis upon which today’s hearing would take place and provided also for the hearing today of submissions on Mr Shawyer’s application for orders based on alleged contempt by Mr Thow.

[3]      At a time shortly after 3pm yesterday afternoon the Registry at Invercargill received from Mr Weir a set of papers, which runs to approximately 61 pages and

included an application for stay of proceedings and an affidavit in support of that

JOHN COBDEN SHAWYER V BRENDAN SHANE THOW HC INV CIV 2010 425 116  3 September 2010

application.  The papers were sent by facsimile and were the subject of an exchange between the Registry and Mr Weir.  As of this morning no formal application has been filed and no affidavit has been filed.

[4]      The issue before me is whether the Court should entertain the application for a stay of proceedings, having regard to the issues before the Court today and having regard to the substance of the application.

[5]      The application is based on the decision of Mr Thow to pursue an appeal in relation to the summary judgment entered something over a year ago.  The affidavit evidence attaches the appeal that has been filed.  I do not intend to embark upon an examination of the merits of that appeal, although it is clear, as I have commented previously in a Minute when Mr Thow raised the possibility of questioning the judgment, that there will be some difficulties in his way in that regard.

[6]      The  central  issue  I  see  as  what  is  the  prejudice  to  Mr  Thow  of  not entertaining the application that is before me when weighed against the prejudice that will be visited on Mr Shawyer, who has done everything correctly to be ready today.

[7]      I see little prejudice for Mr Thow.  He has prepared for today’s hearing.  He has filed supplementary evidence as he was requested to do and is in Court ready to be cross-examined.  If he is cross-examined and he subsequently pursues an appeal successfully then the fact that he has been cross-examined does not prejudice him in any significant way, having regard to the fact that he is here ready to be cross- examined.

[8]      On the other hand, Mr Shawyer has his counsel from Auckland ready to proceed.  The Court does not have open ended resources to deal with a matter such as this if it is adjourned.  On an informal application such as the present the Court at present would be able to give a date certain for the resumption of this hearing in approximately February 2011.

[9]      I am not in the circumstances of this case prepared to adjourn today’s hearing upon the basis of an application informally filed at the eleventh hour and I refuse to entertain the application that is before me.  If and when it is formally filed I direct the Registrar to refer it to me promptly so that any issues of urgency which are said to attach to it can be dealt with in a telephone conference convened before Court one

morning.

Solicitors:

Bell Gully, Auckland

Clive Gardner Law Office, Mt Maunganui