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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Syed v Malik

Details

AGLC: Syed v Malik [2019] NZHC 3210
Case: [2019] NZHC 3210
Decision Date: 5 December 2019

CaseChat Overview and Summary

The High Court of New Zealand heard Syed v Malik, a case involving Zainulabidin Syed, the plaintiff, and Amir Fazal Malik and Trinity Joan Wilson, the defendants. The plaintiff sought to recover disbursements for a hearing from the defendants, while the defendants sought to set aside a liability judgment and resist a strike-out application for their counterclaim. The defendants had been experiencing difficulties with their legal aid status, which impacted their ability to prepare for the hearing. Counsel for the defendants, Mr Nevell, had made efforts to resolve these issues but was ultimately unable to meet the required deadlines.

The legal issues in Syed v Malik primarily revolved around the defendants' applications to set aside the liability judgment and resist the strike-out application for their counterclaim. Additionally, the court considered the defendants' request to file an affidavit late, which would have contained substantial evidence crucial to their applications. The court had to determine whether to grant an extension of time for the defendants to file their affidavit and whether to adjourn the hearing to accommodate the late filing.

Associate Judge Lester declined the defendants' application to file their affidavit late, stating that the defendants had been aware of the need to prepare their evidence since August 2019. The judge noted that the defendants could have presented the substance of their evidence earlier and that requiring the plaintiff to reply within two working days would be unreasonable. Consequently, the defendants decided to discontinue their counterclaim, with costs reserved. The court scheduled the hearing for the application to set aside the liability judgment, with submissions due by specific dates.

The court's decision in Syed v Malik highlighted the importance of meeting procedural deadlines and the responsibility of parties to prepare their cases in a timely manner. The defendants' lack of legal aid status and the associated difficulties were acknowledged, but the court emphasised the necessity of adhering to court-imposed deadlines. The court's ruling ensured that the case could proceed in an orderly fashion, with both parties having the opportunity to present their arguments within the set timeframe.

Orders