Syed v Malik

[2019] NZHC 3210

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE

CIV-2018-404-530

[2019] NZHC 3210

BETWEEN

ZAINULABIDIN SYED

Plaintiff

AND

AMIR FAZAL MALIK

First Defendant

AND

TRINITY JOAN WILSON

Second Defendant

Hearing:

4 December 2019

(By way of telephone conference)

Counsel:

D Jacques for Plaintiff

B C Nevell for Defendants

Judgment:

5 December 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 5 December 2019 at 4.45pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 5 December 2019

SYED v MALIK [2019] NZHC 3210 [5 December 2019]

[1]There are for hearing a number of applications on 11 December 2019

[2]                Mr Nevell, counsel for the defendants, has been in a difficult practical position given the Legal Aid status, or rather lack of it, for his clients. Despite that, Mr Nevell has done his best to try and protect his clients’ position.

[3]                The applications that are for hearing have been before the Court for an extended time. They have been adjourned more than once pending Mr Nevell doing his best to resolve Legal Aid issues.

[4]                On 5 August 2019, I issued a Minute recording the last adjournment of the applications and that Minute made it clear that effectively come what may, the hearings on 11 December 2019 would proceed. Essentially, as at that date the defendants were on notice that any affidavit evidence they wished to file in support of their applications would have to be prepared.

[5]                Mr Nevell by a memorandum to the Court dated 2 December 2019, has foreshadowed the filing of a substantial affidavit.  I say substantial  as  Mr Nevell  has indicated  that  it  stretches  to  119  paragraphs  and   exhibits  approximately   60 exhibits. While the draft text of that affidavit has been sent to counsel for the plaintiff, the final sworn affidavit is not intended to be available until 5.00pm on Friday 6 December 2019. The affidavit will also be accompanied by the defendants’ submissions.

[6]                Mr Nevell has proposed that the plaintiff file any affidavit evidence in reply by 5.00pm on Tuesday 10 December 2019. I do not consider that timeframe realistic, given the size of the proposed affidavit and given as I have said that the need for this affidavit on a come what may basis was known as early as 5 August 2019.

[7]                Rule 7.20 of the High Court Rules require affidavit evidence in support of an application to be filed at the same time as the application. McGechan on Procedure notes that r 7.20 is expressed in mandatory terms, that is the affidavit must be filed at the same time as the application.

[8]                Mr Nevell has said everything that can be said in support of an application to extend time for the filing of that evidence.  He has said that the evidence is crucial   to what he sees as the key applications, that is the application by his clients to set aside the liability judgment entered against them, and to resist the strike out application in respect of their counterclaim.   That may well be the case, but  there is something    in what counsel for the plaintiff has said that the defendants could have put the substance of their evidence forward earlier and again, while it would have been an imposition on Mr Nevell, that could have been done when I indicated in August 2019 that the December hearings were going to go ahead.

[9]                Earlier this week I declined an application for an adjournment of the hearings by Mr Nevell. I accept the point made on behalf of the plaintiff that if the proposed evidence was to be received, it would in effect force the Court’s hand to grant a further adjournment as it would not be reasonable to require the plaintiff to reply in effect within two working days.

[10]For those reasons, the application to file the affidavit is declined.

[11]            Mr Nevell has orally indicated that given the above, he wishes to discontinue his clients’ counterclaim on the basis that costs are reserved, this being a suggestion raised mooted by me in my Minute of 2 December 2019. Mr Jacques for the plaintiff, has agreed to that course.

[12]            Accordingly, I record that the defendants’ counterclaim is discontinued and costs reserved.

[13]            The defendants wish their application to have the liability judgment set aside heard.   Submissions in support are to be filed and served by 5.00pm  on Thursday   5 December 2019.

[14]            Submissions  in  opposition   are   to   be   filed   by   5.00pm   on   Monday  9 December 2019.

[15]            In the amended interlocutory application dated 23 November 2019, there is an application for security for costs that relates to the counterclaim and that application falls away with the discontinuance of the counterclaim. There was also an application to transfer what is referred to as the “hearing of the matter” to the Auckland High Court. Counsel has clarified that that was only in relation to the counterclaim and again with the counterclaim discontinued the application to transfer also falls away.

[16]            As I reiterated at the telephone conference on 4 December 2019 at which this matter was determined, the Court recognises that Mr Nevell has put a lot of his own time to assisting these defendants, but at the end of the day the applications have been around for such a long time that it is not tenable for them to be deferred for an extended period which would be the inevitable result of allowing the affidavit to be read.

[17]            Mr Nevell wanted to consider his position in relation to the application to set aside the liability judgment. It was agreed that if Mr Nevell elected to withdraw that application that there would be judgment for the plaintiff in respect of the plaintiff’s disbursements for the hearing next week but that costs would otherwise be reserved.

Associate Judge Lester

Solicitors:

Legal Associates, Papatoetoe Guest Carter Law, Dunedin