Smith v Ball

[2017] NZHC 3231

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-002268

[2017] NZHC 3231

IN THE MATTER OF

the Estate of Raymond Alexander Smith (Deceased)

BETWEEN

SAHRA LING SMITH

Plaintiff

AND

ROGER NEVILLE BALL

First Defendant

CRYSTAL MINT DEVELOPMENT LIMITED

Second Defendant

CRYSTAL MINT LIMITED

Third Defendant

Hearing:	19 December 2017
Counsel:	K P McDonald for the Plaintiff K T Glover for the Defendants
Judgment:	19 December 2017

JUDGMENT OF EDWARDS J

This judgment was delivered by Justice Edwards on 19 December 2017 at 3.30 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Counsel:     K T Glover, Auckland

Solicitors:    Kevin McDonald and Associates, Auckland Schnauer and Co, Auckland

SMITH v BALL [2017] NZHC 3231 [19 December 2017]

[1]    The plaintiff, Ms Smith, seeks summary judgment against the first defendant, Mr Ball. The claims against the second and third defendants proceed by way of ordinary proceeding.

The claim

[2]    Ms Smith is the daughter of the late Raymond Smith. She was appointed executrix of his estate on 15 August 2016.

[3]    Mr Ball was formerly the executor of Mr Smith’s estate until he was replaced by Ms Smith. Mr Ball is the sole director and shareholder of the third defendant, Crystal Mint Ltd. Crystal Mint Ltd is the sole shareholder of the second defendant, Crystal Mint Development Ltd. Mr Ball is also a sole director of Crystal Mint Development Ltd.

[4]    Ms Smith seeks summary judgment against Mr Ball requiring the transfer of shares in Key Consultants Ltd, and the return of estate documents.

[1]                   The relief sought against the second and third defendants relates to property in Takapuna, and shares in Crystal Mint Development Ltd. The plaintiff says that both the property and the shares were held on trust and she seeks orders that they be transferred to her in her capacity as the executrix of Mr Smith’s estate.

[2]                   The proceedings were filed on 4 October 2017. Mr Ball was served with the proceedings on 26 October 2017 and the first call was adjourned to 5 December 2017 due to the short service.

[3]                   The defendants did not take any steps to defend the plaintiff’s claims. When the application for summary judgment was called on 5 December 2017, Mr Glover appeared for all three defendants, having only just received instructions. Lang J directed that the defendants file an application for leave to file documents in opposition and defence to the plaintiff’s claims, and the proceeding was listed for call in the summary judgment list today.

[4]                   The application for leave has now been filed. The application is opposed by the plaintiff. The only issue for me to determine at this juncture is whether that application for leave should be granted.

Leave to file opposition and defence

[5]                   Rule 12.9(2) provides that if an opposing party does not file and serve documents required by sub-rule (1), then the party may not be heard in opposition to the application for summary judgment without the leave of the Court.

[6]                   In Chappel Carriers Ltd v Chappel Properties Ltd, Faire J considered the predecessor to this rule.1 The Judge considered that the principles relevant to the exercise of a discretion to set aside a judgment offered some guidance as to when leave should be granted. Those considerations included: whether a substantial ground of defence exists; whether the delay was reasonably explained; and whether the plaintiff would suffer irreparable injury if the judgment was set aside. Leave was granted in that case because the delay was short and the plaintiff was not able to refer to any specific prejudice which would result from leave being granted.

[7]                   Rule 5.47(2) provides that, unless otherwise ordered by the court, a statement of defence is required to be filed 25 working days after the day on which the statement of claim and notice of proceeding are served.

[8]                   The defendants’ application for leave is supported by an affidavit of Mr Ball. He explains that he was served with the proceedings on 26 October 2017 at 3.30 pm. He says there were three sets of papers served on him and, due to his long working hours as a surveyor (typically from 7.00 am to 9.00 pm), he did not have time to read the material. Mr Ball deposes that he did not understand that the time required for his response was much shorter than the previous round of litigation involving the estate in which he was involved. Mr Ball engaged a lawyer and left the files with them on 15 November 2017.

1      Chappel Carriers Ltd v Chappel Properties Ltd HC Hamilton CP15/97, 12 August 1997.

[9]                   Mr Ball then explains that he received an engagement letter from his solicitors on 17 November 2017 but required further time to arrange necessary funds to pay the retainer.   He confirmed that he wished those lawyers to act for him on Monday,     27 November 2017, and met  with  them  at  the  first  available  date,  which  was  30 November 2017.

[10]               Mr Ball also deposes to the fact that although he received a list of initial disclosure, he did not receive copies of the documents themselves until 5 December 2017. Counsel was instructed to appear that day in the summary judgment list.

[11]               I am satisfied that leave should be granted in this case. The delay in this case is not extensive and an explanation for the delay has been provided. The plaintiff will not suffer any prejudice by allowing the opposition documents to be filed. In contrast, if leave is not granted, then the defendants will lose the opportunity to defend the claims against them. I am satisfied that the interests of justice require leave to be granted in this case and leave is granted accordingly.

Summary judgment application

[12]               The scope of the summary judgment application has narrowed significantly since it was filed. The shares in Key Consultants Ltd were transferred to the plaintiff on 4 December 2017. This part of the application is now redundant. The scope of the order requiring the return of estate property and documents has also narrowed, but there remains an issue about exactly what documents fall within the terms of the order as sought in the application. Mr Ball submits that the scope of the orders sought is still too wide.

[13]               It may be that further discussion between counsel can resolve that issue without the need to argue the application. To allow that to occur, I adjourn the application to the summary judgment list on 13 February 2018. If the matter cannot be resolved, it will need to be set down for argument. It is unlikely to take more than half an hour.  It may be possible to hear and determine the application when it is next called, but that will depend on the size of the list on that date.

Result

[14]               Leave is granted to the defendants to file a notice of opposition and affidavits in opposition to the summary judgment application, and the statement of defence.

[15]The application for summary judgment is adjourned to 9.00 am on

13 February 2018.

[16]               The costs of the leave application and the application for summary judgment are reserved.

Edwards J