Thai Delight Limited (in liquidation) v Madsen-Ries

[2014] NZHC 823

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-005126 [2014] NZHC 823

UNDER  the Companies Act 1993

IN THE MATTER             of the liquidation of Thai Delight Limited

(in Liquidation)

BETWEEN  THAI DELIGHT LIMITED (IN LIQUIDATION)

First Plaintiff

VIVIEN JUDITH MADSEN-RIES AND HENRY DAVID LEVIN as liquidators of Thai Delight Limited

Second Plaintiffs

ANDKARNCHANA PHONNAM Defendant

Hearing:                   16 April 2014

Appearances:           Ms K Bannister for plaintiffs

No appearance for defendant

Judgment:                16 April 2014

ORAL JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

THAI DELIGHT LIMITED (IN LIQUIDATION) v PHONNAM [2014] NZHC 823 [16 April 2014]

[1]      The plaintiffs have sought particulars of the statement of defence which has been filed.  Those particulars are the same that were included in a notice requiring further particulars of statement of defence dated 5 February 2014. There has been no response by the defendant to that notice of particulars hence the application now before the Court.

Paragraph 7

[2]      The statement of claim in paragraph 7 provided that the company’s financial statements for the financial years ended 31 March 2007 to 2010 included certain financial details which were then set out.

[3]      In paragraph 7 of the statement of defence the defendant admitted that the companies financial statements “included certain financial details, but otherwise denies paragraph 7 of the statement of claim”.

[4]      I accept that the pleading is vague and the defendant should be required to state exactly what of the paragraph 7 financial details were in fact included in the annual accounts.

Paragraph 2

[5]      In paragraph 15 the plaintiff pleaded that the net proceeds of the sale of the business were:

(a)       Not deposited into any bank account in the name of the company; (b)        Were paid in full to the defendant.

[6]      The defendant in her statement of defence said:

15.She admits that the net proceeds of sale of the business were not deposited into  a bank account in the  name  of the company,  but otherwise she denies paragraph 15.

[7]      This represents a pleading that both admits in their entirety the allegations in paragraph  15  but  reserves  of  denial  of  part  of  them.     The  pleading  unless

particularised to remove the ambiguity will be an abuse of process and will not survive a strike out application.   The present application is limited to one of particulars and I direct that the defendant is to provide particulars of the denial contained in paragraph 15 of her statement of defence.

Paragraph 17

[8]      The statement of claim at paragraphs 17 allege that the company’s financial statements for the year ended 31 March 2009 showed that the company owed the defendant $20,446 under the current account.

[9]      The denial is as follows:

17.Save to admit that the company owed her money under the current account as at 31 March 2009, she denies paragraph 17 of the statement of claim.

[10]     This pleading would seem to contemplate that the defendant is saying that the company owed her some money but not the entire amount that is claimed.  She must provide particulars of the amount that the company owed her.

Paragraph 18

[11]     Paragraph 18 of the statement of claim set out in table form that payments were  made  to  the  defendant  by  the  company  under  three  headings,  drawings, proceeds from the sale of a business on two different occasions, all of which totalled

$52,709.

[12]     The defendant says in paragraph 18:

She denies paragraph 18 of the statement of defence.

[13]     Ms Bannister referred me to r 5.48(2):

(2)       A denial of an allegation of fact in the statement of claim must not be evasive. Points must be answered in substance. If for example, it is alleged that the defendant received a sum of money, it is not sufficient to deny receipt of the particular amount. Rather, the defendant must deny receipt of that sum or any part of it, or set out

how   much   was   received.   When   a   matter   is   alleged   with circumstances it is not sufficient to deny it as alleged with those circumstances. In all cases a fair and substantial answer must be given.

[14]     The sub-rule applies to the situation which arises here because of the way that the defendant has pleaded her denial to paragraph 18.  The defendant is required to provide the particulars which are sought in paragraph 4(a)(i), (b)(i) and (c)(i).

[15]     I do not consider that  the other request for particulars can be sustained. Essentially the other requests for information which are brought in the form of particulars are not really concerned with particulars at all.   They bear some resemblance to interrogatories.  Particulars are required to ensure that the allegations contained in the statement of claim are properly addressed and unambiguously admitted or denied in the statement of defence.  If the defendant can discharge her duty by denying allegation that does not open the door for the plaintiff to ask her a series of other questions that relate to that topic.   In this case the thrust of the particulars application is that because the denial was that the money was not paid to her then, to take (c)(iv) as an example the plaintiff goes on to ask essentially if she didn’t get it who did and that is not a function of particulars.   I decline to order particulars under paragraph 4 of the notice of particulars other than the ones that are set out at the beginning of this section for those reasons.

[16]     The plaintiffs have succeeded on the application and think that although parts of the  application  were  not  granted  they are  nonetheless  to  be regarded  as  the successful  party.    The  defendant  is  to  pay  costs  on  a  2B  basis  together  with

disbursements relating to the application.

J.P. Doogue

Associate Judge