IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CIV-2014-409-000549 [2017] NZHC 477
BETWEEN GREGORY ROBERT SMITH AND
COLIN PETER STOKES Plaintiffs
AND
NOBLE INVESTMENTS LIMITED Defendant
AND
APPLEFIELDS LIMITED
Second Defendant and Counterclaim
PlaintiffAND
JUSTIN WILLIAM PRAIN Third Defendant
AND
CARDNO (NZ) LIMITED Fourth Defendant
AND
GOLD BAND FINANCE LIMITED Fifth Defendant
AND
DELTA UTILITY SERVICES LIMITED Sixth Defendant
AND
SHAYNE PHILPOTT, NEW ZEALAND TRUSTEE SERVICES LIMITED, FAY EUNICE RICHARDSON, AND BURNSIDE TRUSTEES LIMITED Second Counterclaim Defendants
AND
STUART ELLESMERE LINDSAY AND JULIE IVONNE LINDSAY
Third Counterclaim Defendants
Hearing: (by telephone)
28 February 2017
Appearances:
G R Smith and C P Stokes (Plaintiffs) in person
P J Woods for Gold Band Finance Ltd
R J M Sim for Delta Utility Services Ltd
(other counsel excused)Judgment:
16 March 2017
SMITH v NOBLE INVESTMENTS LIMITED [2017] NZHC 477 [16 March 2017]
RULING OF ASSOCIATE JUDGE OSBORNE
[as to relation to joinder of fifth and sixth defendants]
Introduction
[1] A question has arisen in the course of the case management of this proceeding as to whether there has been an effective joinder of Gold Band Finance Limited (Gold Band) and Delta Utility Services Limited (Delta) as fifth and sixth defendants respectively.
The pleadings to date
[2] In March 2015 the plaintiffs commenced this proceeding by naming four defendants (all of whom remain as defendants).
[3] The plaintiffs subsequently amended their statement of claim twice, each time only naming the same four defendants.
[4] On 29 July 2016 the plaintiffs filed a fourth amended statement of claim, on this occasion naming Gold Band and Delta as defendants and including pleadings in relation to them.
[5] I subsequently made case management directions upon the assumption that the plaintiffs had exercised a procedural right to join the fifth and sixth defendants.
The first issue – the need for an order of joinder
The procedural issue
[6] Counsel for Gold Band and Delta assert that the plaintiffs could not join those entities as parties simply by filing an amended statement of claim naming Gold Band and Delta as defendants. They say that an order for joinder is required to be made under r 4.56 High Court Rules. Mr Sim and Mr Woods submit that the procedural
rights and requirements are accurately summarised in Andrew Beck’s Civil
Procedure – A to Z of New Zealand Law in the following passage:1
3.6.5 Procedure relating to joinder
Where plaintiffs are entitled to join under r 4.2 HCR and wish to commence action together, they can simply cite themselves as plaintiffs. Similarly, where defendants fall within the ambit of r 4.3 HCR they may be cited and served as defendants without any formality when proceedings are instituted. If a potential party falls outside these rules, or is sought to be added some time after the commencement of proceedings, it will be necessary to make an interlocutory application to court under r 4.56 HCR, where the court has a discretion to allow the joinder.
The rules
[7] In considering…
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- Case
- [2017] NZHC 477
- Decision Date
CaseChat Overview and Summary
The court examined the relevant High Court Rules, particularly rules 4.1 to 4.56, and concluded that the joinder of parties after the commencement of proceedings requires an order under rule 4.56. The court noted that while the early rules (4.1 to 4.3) establish the principles for identifying who may be joined, rule 4.56 governs the addition of parties once proceedings have been initiated. The plaintiffs' argument that they could join the additional defendants by consent was also rejected because not all parties had consented, and the process for "automatic" joinder under rule 1.8 had not been satisfied.
The court found that it had the discretion to order the joinder of the additional defendants under rule 4.56, considering factors such as the necessity for their presence to settle all questions involved in the proceeding. Given the complexity of the case and the self-representation of the plaintiffs, the court decided to join the intended defendants but allowed them a set period to apply for discharge of the order or for striking out the claim against them. Consequently, Gold Band Finance Limited and Delta Utility Services Limited were added as the fifth and sixth defendants respectively, with any objections to be filed within ten working days of the judgment.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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