Shen v Ossyanin
[2018] NZHC 3385
•18 December 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2015-404-00855
[2018] NZHC 3385
BETWEEN ZHAOWU SHEN
Plaintiff
AND
ANDREY YURIEVICH OSSYANIN AND TATYANA OSSYANINA
First Defendant
HARRINGTON PROPERTY INSPECTIONS LIMITED
Second Defendant
Hearing: 3 – 7, 11 – 12, 14 September and 17 December 2018 Counsel:
A Sharp and C Huang for the Plaintiff
R J Macdonald and M Cherrington for First Defendant
Ruling:
18 December 2018
RULING OF WHATA J
This judgment was delivered by me on 18 December 2018 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date: ………………………….
Solicitors: Jesse & Associates, Auckland
MBC Law Limited, Auckland
SHEN v OSSYANIN [2018] NZHC 3385 [18 December 2018]
[1]Mr Ossyanin seeks permission to offer further evidence and to:
(a)call Andreus Mitalaukis;
(b)recall himself; and
(c)recall Anton Naoumov.
[2] The application in relation to Mr Mitalaukis is not opposed, subject to the Court being satisfied that he was timeously appraised of the date of the hearing and steps were taken timeously to secure his attendance at the hearing and, further, that any wasted costs occasioned by a further hearing are borne by Mr Ossyanin.
[3] The plaintiff, however, opposes the balance of the application as it relates to the production of “contemporaneous records of invoices and payments”.
Background
[4] This case is essentially about whether Mr Ossyanin misrepresented to Mr Shen that the house sold by him to Mr Shen did not ‘leak’. One of the key factual issues is whether, at a meeting on 1 November 2013, Mr Shen asked Mr Ossyanin the following question: “Does the house leak?” Mr Ossyanin says that question was never asked. He also says that, in fact, issues about potential leaks were addressed at an inspection on 27 October 2013. The plaintiff says no inspection took place on that date.
The new evidence
[5] The new evidence is to address whether or not a meeting took place with the plaintiff, Mr Shen, his real estate agent, Ms Chen, and Mr Harrington, his inspector, on 27 October 2013. Mr Ossyanin seeks to produce contemporaneous records of invoices and payments in respect of transaction services provided on 17 October 2013, 27 October 2013, and 1 November 2013. Mr Ossyanin, in particular, now wishes to produce an invoice in respect of services provided by Mr Naoumov, his interpreter, which purports to record his attendance at a meeting on 27 October 2013 with a
building inspector. Mr Ossyanin says that this evidence corroborates his version of events.
Reason for lateness
[6] Mr Ossyanin submits that he did not recall having received the invoices from Mr Naoumov until after the close of the hearing. Having reviewed them, they supported his version of events and now he seeks leave to adduce them.
The plaintiff’s opposition
[7] The plaintiff opposes the making of the order in relation to Mr Ossyanin and Mr Naoumov, for the following reasons:
(a)The issue whether or not the plaintiff and/or his witness were aware of or attended a meeting on 27 October 2013 at 3 Wairangi Street, Herne Bay, was clear from not only their viva voce evidence (and their cross- examination) from the first day of the hearing through to the third day of the hearing, but also from the diary note of Mr Harrington discovered prior to the hearing as part of ongoing discovery obligations.
(b)There were no facts before the Court to either support this application or raise an inference that the need for the relief claimed arose out of some failure on the part of counsel to note the significance of this evidence sought to be led. This matter, which arises directly from the first defendants’ failure to make discovery and produce the documents, they now seek to introduce.
(c)There is no explanation for the reasons for failing to have produced these documents, as required by discovery, or to provide the evidence concerning the documents during the testimony of Messrs Ossyanin and Naoumov. Both of these persons gave evidence, in the main, on the fifth day of hearing.
(d)Had Mr Ossyanin exercised due diligence, these documents, if available prior to the hearing, must have been available for discovery and producing.
(e)The plaintiff would be prejudiced by the introduction of these documents which, if before the Court, should have been put to the plaintiff and his witnesses.
(f)If the documents were permitted to be introduced, it would properly require the plaintiff and Ms Chen to return from China to deal with such evidence, which would create unjustifiable expense.
Threshold test
[8] The threshold for further evidence after closure of the case was recently addressed by Duffy J in Jackson v Te Rangi. She observed:1
[111] In Lindsay v Nobel Investments Ltd [2014] NZHC 799, Associate Judge Osborne at [122] endorsed a passage from McGechan on Procedure (online looseleaf ed, Brookers) at [HR10.10.07], which draws from case law pre-dating the Evidence Act. However, he then went on to say at [123]:
There is a risk in this area of overlooking the principle, as articulated by the Supreme Court that “resort is not to be had to the common law when statute covers the ground”: BNZ Investments Ltd v Commissioner of Inland Revenue [2008] 2 NZLR 709 at [71].
This led Associate Judge Osborne to the view that:
[125] The starting point under s 98 is therefore that the evidence is not to be offered without my permission. Subsections (2) and (5) then permit discretionary departure from that starting point, but only where unfairness cannot be remedied by an adjournment or a costs award.
[126] That discretion must be exercised by reference to the purposes of the Evidence Act as contained in s 6, which relevantly provide:
6 Purpose
The purpose of this Act is to help secure the just determination of proceedings by—
(a)providing for facts to be established by the application of logical rules; and
1 Jackson v Te Rangi [2014] NZHC 2918, [2015] 2 NZLR 351.
…
(c) promoting fairness to parties and witnesses; and
…
(e) avoiding unjustifiable expense and delay; and
…
[127] Here, for the most part, the Evidence Act covers the ground. While pre-Act case law may assist in highlighting matters that may be relevant to the exercise of the discretion, the provisions of the Act itself are the paramount consideration. …
[112] I agree with Associate Judge Osborne’s approach. Though I note that the discretion in s 98 is broad; and the considerations expressed in s 98 and the purpose in s 6 of the Evidence Act articulate general notions that also underlay the common law tests for admission of further evidence after a party has closed its case. So, when it comes to the application of the statutory provisions in a particular case, the common law principles for admission of this type of evidence still provide helpful guidance; particularly at a time when there is a paucity of case law under s 98.
[113] A helpful summary of the relevant common law principles can be found in Equiticorp Industries Group Ltd (in stat man) v Hawkins [1996] 2 NZLR 82 (HC) at 85:
1The discretion should be exercised sparingly once the cases on both sides have closed and leave should only be given in exceptional circumstances;
2Only if the failure to call evidence at the proper time is adequately explained should the discretion be exercised;
3The justice of the case must require the admission of the additional evidence …;
4Leave will be refused if the … evidence would have been available had due diligence been exercised;
5If the party is taken by surprise, leave will be more readily granted; and
6The distinction between a failure to tender evidence, and an election not to, can be important.
I adopt this framework for present purposes.
Assessment
[9] I am satisfied that the application for leave to adduce further evidence should be declined for the following reasons:
(a)The documents now sought to be produced should have been discovered. No adequate reason has been provided for the failure to discover these documents.
(b)The documents are only indirectly relevant to the key issues at trial. Mr Ossyanin wants to adduce them because it corroborates his view that there had been a meeting prior to the key November meeting and contradicts the plaintiff’s account of what occurred. However, as Mr Macdonald noted for Mr Ossyanin, these events took place some five years ago. An exact memory of what occurred cannot be expected. Moreover, even if the earlier inspection happened, its probative value in terms of the key issues in the case is limited, because it does not bear directly on whether key statements were made in the November meeting.
(c)It would be unfair to the plaintiff to allow the evidence, because ultimately key witnesses would need to be recalled at substantial expense and inconvenience.
(d)I also agree with the plaintiff that, to the extent relevant, the issue was well before the Court from the first day of the hearing and it should have been evident then to Mr Ossyanin that these documents might be relevant.
[10] On that basis, the application to call Mr Mitalaukis is granted. The application in relation to the invoices is declined.
0
2
1