Tian v Zhang

[2016] NZHC 1237

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-2009 [2016] NZHC 1237

BETWEEN

XIGANG TIAN

Plaintiff

AND

KUN ZHANG Defendant

Hearing:	17 May 2016
Appearances:	Mr F Deliu and Mr D Zhang for the Plaintiff Ms R Reed and Ms K Austin for the Defendant
Judgment:	9 June 2016

JUDGMENT OF ASSOCIATE JUDGE J P DOOGUE

This judgment was delivered by me on

09.06.16 at  4 pm, pursuant to

Rule 11.5  of the High Court Rules.

Registrar/Deputy Registrar

Date……………

TIAN v ZHANG [2016] NZHC 1237 [9 June 2016]

Introduction

[1]      The parties to this proceeding were previously married.   They eventually separated and entered into a property sharing agreement in September 2014 (“the Agreement”).  The plaintiff ex-husband has subsequently filed proceedings seeking to overturn the Agreement.

[2]      The defendant ex-wife now seeks by way of an interlocutory application an order  that  one  of  the  jointly owned  properties  be  lent  out  for  rental  under  the management of a property management  company, pending the resolution of the substantive proceedings.  Alternatively, she seeks an order that the plaintiff pay the loss which results from leaving that property unoccupied.   The context in which these orders are sought is explained more fully below.

Background

[3]      The dispute concerns, inter alia, four residential properties that were jointly owned by the plaintiff and the defendant during their marriage.

[4]      Two of those properties are located at 43 and 43A Rua Rd, Auckland.  The front property is leased out as a child-care facility and the rear property was rented to a residential tenant until that tenancy came to an end in October 2015.   The rear property, 43A, has been empty since.  Under the Agreement, those properties would have been allocated to the plaintiff.  The defendant would have been allocated two other properties in  Birkenhead, Auckland.    One of those  properties is  currently rented out, while the other has been separated into a number of discrete units.  The defendant occupies one of those units and the others are tenanted.  However, since the plaintiff no longer accepts the terms of the Agreement, all four properties remain in the joint ownership of the plaintiff and the defendant.

[5]       The plaintiff is currently facing charges arising from alleged offences of domestic violence committed against the defendant.   He has been released on electronically monitored (“EM”) bail pending trial and wishes to reside in the property at 43A Rua Rd.  In order for him to do so, it is necessary for him to obtain approval  from  the  relevant  authorities.    However  for  various  reasons,  his  first

application was declined.   The plaintiff alleges that a substantial reason why the address was not approved was a gratuitous interference by the defendant in the approval process.   For her part, the defendant says that the authorities made their own decision and she had no influence over it.  The result is that the defendant is presently living in one of the jointly owned properties, while the plaintiff is living at his own cost in a private hotel.

[6]       The defendant wishes to rent out the property at 43A Rua Rd, pending the resolution of the substantive proceedings.   She says that all of the properties are subject to mortgages to the HSBC and the outgoings attributable to those mortgages are not being met, with the result that one of the partners (probably herself) will have to make up the shortfall.   Renting out 43A would provide some income to set off against the outgoings.   It would not wholly solve the problem but the defendant considers that the property ought to be managed in that way.  The plaintiff apparently opposes that step being taken.

[7]      I say that the plaintiff “apparently” opposes that step because in one of the memoranda of submissions which the defendant filed, she said that following prolonged negotiations a number of the matters that had been raised in the applications had been resolved by agreement.  She said that the only issue left was whether the plaintiff:

… should pay for the shortfall in mortgage caused by his use of the property for his anticipated EM bail application to vary conditions for his use of the property if the application is successful. There is also an issue to do with the adjustment of the sharing of post-separation mortgage servicing and occupational rent.

[8]      Notwithstanding reference to the agreement, I understand that the court will still need to make orders in this matter.  Even if the plaintiff is unsuccessful in his application for EM bail based upon his residence at the property, issues may still remain to be dealt with concerning how the property is to be managed and how any rental payments are to be dealt with.

[9]      Two preliminary points have been raised about the application.  The first is the submission that this court does not have jurisdiction to make interim orders of

the kind that are sought. The second point is the submission that the affidavits which have been filed in support of the application are not in compliance with the law and the rules of court.  It is submitted that they should not be read.  The first of these preliminary points is taken on behalf of the plaintiff and the second by the defendant.

[10]     It is obvious that if the court has no jurisdiction to make orders of an interim type which the defendant seeks, then that will be an end to the application.  On the other hand, if the affidavits which the plaintiff has filed in opposition to the applications cannot be read, then the options to the court are as follows.   First, it could proceed and deal with the matter essentially on the basis of a formal proof application.  Secondly and alternatively it could grant the plaintiff leave to withdraw the affidavits and replace them with compliant documents.  If the latter course was taken, it would be necessary for the court to hear the application on a defended basis.

[11]     I shall deal first with the jurisdictional point regarding the defendant’s interim

application.

Jurisdiction to make order sought by defendant

[12]     The parties agreed that there was a preliminary issue which needed to be resolved.  That issue was whether there is even jurisdiction for the court to make an order of the kind which the defendant seeks on an interim basis.  If that question is determined against the defendant, there will be no need to enter into consideration of the matter on its merits.

[13]      Before considering the jurisdiction of the court in the matter it is necessary to briefly mention that what is sought is an order that the property at 43A Rua Road be rented out under the management of a property manager who would collect the rent.  I am not entirely clear about the process by which the rent is to be used to meet the outgoings on the property but presumably directions would be sought from the court that the manager is to pay the outgoings including the mortgage charges and repayments to HSBC on behalf of the plaintiff and defendant.  In due course, there would be a proper accounting for any advantage obtained from the renting out of the property.

[14]     It is said that it is necessary for interim measures of this kind to be made because final resolution of the relationship property dispute is still some time away. While the parties signed the Agreement in September 2014, the plaintiff has now brought an application to set aside that Agreement.   Proceedings for that purpose were commenced in the Family Court but were transferred by order of the Court to the High Court.

[15]      The positions of the respective parties can  be briefly summarised.   The defendant says that the basis of the application which the defendant makes is to be found in ss 25, 33 and 54 of the Property (Relationships) Act 1976 (“PRA”).  The position which the plaintiff takes is that s 25, which is the primary legislative basis relied upon by the defendant, does not contemplate the court making orders on an interim basis but is designed to empower the court to make final orders as part of the resolution of the overall relationship property situation between the parties.

The Property (Relationships) Act 1976

[16]     The purpose of the PRA is described in s 1M in the following terms:

1M     Purpose of this Act

The purpose of this Act is—

(a)       to reform the law relating to the property of married couples and civil union couples, and of couples who live together in a de facto relationship:

(b)       to recognise the equal contribution of both spouses to the marriage partnership, of civil union partners to the civil union, and of de facto partners to the de facto relationship partnership:

(c)       to provide for a just division of the relationship property between the spouses or partners when their relationship ends by separation or death, and in certain other circumstances, while taking account of the interests of any children of the marriage or children of the civil union or children of the de facto relationship.

[17]     There  is  no  dispute  that  the  property  at  43A  Rua  Road  is  relationship property.

[18]     The parties did not refer me to any source of jurisdiction pursuant to which the court might make interim orders affecting the status of property pending hearing

of substantive proceedings other than the sections of the PRA to which I will make reference.

[19]     Counsel for the defendant, Ms Reed, referred to s 25 and drew my attention to the wide terms in which that section is couched. The section provides as follows:

25       When court may make orders

(1)      On an application under section 23, the court may—

(a)      make any order it considers just—

(i)        determining the respective shares of each spouse or partner in the relationship property or any part of that property; or

(ii)      dividing the relationship property or any part of that property between the spouses or partners:

(b)      make any other order that it is empowered to make by any provision of this Act.

(2)      The court may not make an order under subsection (1) unless it is satisfied,—

(a)      in the case of a marriage or civil union,—

(i)        that the spouses or civil union partners are living apart (whether or not they have continued to live in the same residence) or are separated; or

(ii)      that the marriage or civil union has been dissolved;

or

(b)       in  the  case  of  a  de  facto  relationship,  that  the  de  facto partners no longer have a de facto relationship with each other; or

(c)       that  1  spouse  or  partner  is  endangering  the  relationship property or seriously diminishing its value, by gross mismanagement or by wilful or reckless dissipation of property or earnings; or

(d)      that either spouse or partner is an undischarged bankrupt.

(3)       Regardless of subsection (2), the court may at any time make any order or declaration relating to the status, ownership, vesting, or possession of any specific property as it considers just.

(4)       To  avoid  any  doubt,  but  without  limiting  subsection   (3),  if proceedings under this Act are pending, the court, if it considers it appropriate in the circumstances, may make an interim order under

that subsection for the sale of any relationship property, and may give any directions it thinks fit with respect to the proceeds.

(5)      This section is subject to the other provisions of this Act.

(6)      In proceedings commenced after the death of 1 of the spouses or partners, this section is modified by section 91.

[20]     Neither party suggested that s 25 was not applicable given the circumstance that the parties in this case have terminated their marriage.

[21]     Ms Reed particularly emphasised the width of the terms of s 25(3).   The effect of that subsection would appear to be as follows.  While general jurisdiction to make orders affecting property is limited to the circumstances where the parties have ceased, inter alia, to live together in a relationship or marriage, the court may at any time make any order or declaration relating to the status, ownership, vesting, or

possession of any specific property as it considers just.1

[22]     Ms Reed also referred me to the provisions of s 33 of the PRA.  However, given the terms of s 33(1), the indications are that the orders that are available under s 33 are ancillary orders that are required to give effect to orders declaring the interests of the parties to property overall or to individual items of property.   The tenor of the section suggests that the jurisdiction is to be exercised following the making of such orders.   However in this case, the parties have agreed on the appropriate categorisation and allocation of property under s 21 of the PRA.  Until and unless that Agreement has been set aside by order of the court, it would seem to be unlikely that any substantive order declaring the interests of the parties in the property could be made, since any application for the making of such orders would potentially be met by an opposing party invoking the provisions of the Agreement. Ms Reed also referred to s 34 of the PRA as a potential source of jurisdiction. However as I read that section, the point is to ensure that the court has flexibility and wide discretion in the making of orders and may make orders even if they were not sought at the earliest point of time in the life of the proceedings.

[23]     Counsel for the plaintiff, Mr Zhang, submitted:

24.It was not clear from Ms Zhang’s application which section of the Act she relies on. In reading my learned friend’s submissions it is apparent that she relies on s 25(3) of the Act. She cited several cases under this section. What is clear however, is that none of these cases involved an order to appoint a property management company, and/or renting out a property, and/or compel a party to pay expenses on an ongoing basis. Plainly s 25(3) is intended to be used as a one- off permanent distribution of a particular relationship property and,

it is not intended to be used in the manner which Ms Zhang relies on. Therefore it is clear that the Court has no jurisdiction to make the s

25(3) order which Ms Zhang is seeking.

Discussion

[24]     The PRA does not appear to contain any explicit provision for management of real property on an interim basis pending resolution of substantive questions that have arisen between the parties.   Section 43 of course makes provision for dispositions to be restrained so as not to defeat the rights of a party who might make application to the court for orders for a declaration, division etc of relationship property.  As well, tenancy orders can be made under s 28 and following, and they may be made on such terms and for such duration as the court deems fit.

[25]     The order in this case is allegedly required so that income can be derived from letting one of the relationship properties in the interim until final orders for disposition of the property can be made.  Unless such an order is made, there will be arguably a diminution of the property that is ultimately available for division because of the increase in secured borrowings over the property.  That comment should not be viewed as a concession that the defendant will necessarily succeed on an application to have an order made which will lead to the property being let out.  But as a matter of conformity with the objectives and principles of the PRA, making an order of that kind cannot be said to be in any way inconsistent with the legislative purpose.

[26]     In  another  context,  McMullin  J  when  considering  the  making  of  an occupation order stated that the approach of the court must be flexible and that ultimately the enquiry must be as to what is just and fair in the particular circumstances of the case.2

[27]     I consider such an approach is also required in relation to the power conferred on the court by s 25.  Further, such an outcome is reinforced by the terms of s 25 itself.  The court has power to intervene in various situations which are defined in s

25.  Those include where a spousal partner is endangering the relationship property or seriously diminishing its value by gross mismanagement or by wilful or reckless dissipation of property or earnings.   The circumstances described suggest that the court would consider prompt intervention and would not be required to delay making orders until the case was ready for consideration being given to the making of permanent orders between the parties.  Further, s 25 refers to the court making orders “at any time” relating to the status, ownership, vesting or possession of any specific property.  Such a formulation is wide enough to embrace making a possession order in favour of the defendant on terms that the property is to be let out through the agency of a property manager with safeguards in place as to how the rental income is to be dealt with.

[28]    I consider that an interpretation of s 25(3) which is consistent with the defendant’s application is also reinforced by the decision of the Family Court in LH v BAH.3    In that case the Judge made a possession order for the letting of a family holiday home prior to the defended hearing regarding the substantive rights of the parties, with the objective that the wife should have possession for those purposes “in the short term.”4   The order in that case was explicitly made pursuant to s 25(3). The Court in that case had received submissions that the order could be made under s 27 but proceeded contrary to that submission and instead invoked s 25.  The judge said:5

I believe principle 1N(d) (“inexpensive, simply, speedily”) mandates a Judge in the Family Court jurisdiction with respect to relationship property issues to exercise a wide and flexible discretion particularly when a Judge has to resolve urgent issues concerning relationship property where the parties are absolutely deadlocked.

[29]     I respectfully agree with those observations although I would not necessarily restrict them to describing the jurisdiction of a Family Court Judge.   The same

approach should, in my view, be taken in this court.

3      LH v BAH FC Christchurch FAM-2010-009-1775, 23 December 2010.

4 At [21].

5 At [27].

[30]     The result is that I do not accept the submission that the court does not have jurisdiction to make an interim order of the kind sought pursuant to s 25(3) of the Act.

[31]     However, because it will be necessary to hear evidence touching on discretionary issues it has not been possible for the court to reach a concluded view on whether the type of order which is sought by the defendant ought to actually be made. That issue will have to be deferred until a later date.  Directions will be given elsewhere in this judgment in that regard.

Admissibility of affidavit evidence

[32]     When this hearing commenced before me on 17 May 2016 Ms Reed raised a preliminary point about the affidavits which had been filed by the plaintiff in support of his cross-application.

[33]     The point taken was that the plaintiff was allegedly unable to speak English. His affidavits were expressed in English and he had sworn in the usual way that they were true.   The evidence for the contention that the plaintiff was unable to speak English was an email which had been put in evidence, which the plaintiff had sent to a real estate agent and in which he said that he could not speak English.  The script was in Mandarin on the copy which was put in evidence but Ms Reed produced a translation which Mr Zhang agreed was substantially to the effect I have just stated. Mr Zhang submitted that, in effect, the plaintiff had made the statement for reasons of convenience and that it did not reflect his ability to read and understand English language documents.

[34]     I considered that the material that had been disclosed was enough to raise a concern about the admissibility of the affidavit and I asked the plaintiff to go into the witness box to answer questions concerning his facility in English.  From the outset it was clear that he had a limited ability in the English language.  He indicated his preference to have the questions translated into Mandarin by his counsel, Mr Zhang, and then for his answers to be similarly translated back to the court.

[35]     The essence of this evidence was that he could not speak English well but that he was able to make sense of written documents.   He did this by reading the documents himself, consulting a dictionary and through assistance from his present wife who apparently has reasonable English.

[36]     Ms Reed was minded to put to him an affidavit that was given in 2014 by a process server, Mr Leith.  By the time this point was reached, senior counsel for the plaintiff  Mr  Deliu  had  arrived  at  court  and  I  permitted  him  to  conduct  the examination of the plaintiff.   Mr Deliu objected to the admission of the Leith “affidavit” on the grounds that the plaintiff had had no notice of the fact that the affidavit was going to be put in evidence and, more fundamentally, that it was a copy of an affidavit and was not itself an affidavit.  After hearing from Ms Reed I ruled that the affidavit from Mr Leith should not be referred to the witness.

[37]     Mr Deliu asked the plaintiff a number of questions designed to elicit what experience he had in speaking English, principally in this country which he came to some four years ago.  He had, he said in response, undertaken an English language test and had scored 4.5 out of nine for reading English.  He had undertaken a class in English.  He was asked about the process that he followed in regard to the affidavits which were now under scrutiny.  He said that he wrote out what he wanted to say in Mandarin and then sent it to Mr Zhang who would render it into English and have the affidavit drawn up.  I gathered that when considering the affidavit the plaintiff would  follow  the  same  process  that  he  normally  did  when  reading  English documents, that is he would take some time to read through them.  This I gathered was not a rapid process.  He would also use his dictionary and have help from his present wife.

[38]     At that point I indicated to counsel that I would require some assistance on the legal aspects of the admissibility of the affidavits.  The essential question was whether they complied with the requirements imposed by the law before an affidavit can be put in evidence.  I expressed the view to counsel that a distinction probably had to be drawn between, on the one hand, the ability of the plaintiff to engage in “live” discussions in English and his ability to read affidavits, given time.

Principles, rules and legal decisions

[39]     The first point to be observed about the rules is that r 9.73 of the High Court Rules (“HCR”) requires that affidavits are to be sworn or affirmed in accordance with the Oaths and Declarations Act 1957.

[40]     Section 4 of that Act in the case of a written affidavit requires the document to include an affirmation of the contents in the following form:

I, AB, of [specify] solemnly and sincerely affirm…

[41]     Section 4(2) provides that the affirmation must then “proceed with the words of the oath prescribed by law”.  This last term is also used in relation to an oath in the case where witnesses give oral evidence.  The meaning of the term is not further explained in the Act.

[42]     It  is  common  ground  in  the  case  before  me  that  the  witness  giving  the affidavit which is to be affirmed will be required to affirm it before a person who is qualified  for  that  purpose.    The  correct  practice  is  for  the  person  taking  the affirmation to ask if the deponent solemnly and sincerely affirms the contents of the affidavit before going on to ask if the name on the front of the affidavit is the full name of the deponent, that the signature that he has put on the document is the true usual signature, that the deponent has read and understood the contents of the document and that the contents of the document are true and correct to the best of the deponent’s knowledge and belief.  The deponent is required to answer yes to all the

questions.6

[43]     The requirement of r 9.76 that the affidavit must be expressed in the first person is consistent with and reinforces the expectation that what has been recorded in the document  is the personal  statement of the deponent.   That consideration coupled with the requirement of solemnifying the affidavit or affirmation is required so that the court can be sure that what is contained in it is truly the evidence of the deponent.  There is no more room for the intervention of third persons to explain or

summarise the evidence that has been provided in the affidavit or affirmation than

6      Refer to “Working in a legal practice” New Zealand Law Society

< is for a third person to explain to a court what evidence a witness is intending to give in the proceeding.

[44]     The law recognises that in certain situations it is not practical for the person providing  the  affirmation  or  affidavit  to  actually  verify  it  and  adopt  it  by  the processes of reading it and then signing a statement which in effect means that the contents of the document are the truth.   That is because the particular personal circumstances of the deponent mean that such verification is not possible. Where the person is blind is a good example and where the person is illiterate.  Rule 9.84 of the HCR makes provision for both of these contingencies.  Rule 9.84 provides:

9.84     Affidavit by blind or illiterate person

If it appears to the taker that the person making the affidavit is wholly or partially blind, or (whether because of physical handicap or otherwise) is unable to read or has severe difficulty in reading, the taker must certify in the affidavit—

(a)      that the affidavit was read and explained by him or her to the person; and

(b)      that   the   person   appeared   perfectly   to   understand   the affidavit; and

(c)      that the person wrote his or her signature or made his or her mark in the presence of the taker.

[45]     In such cases the intervention of a third party is inevitable.  In order to ensure that the process is sound though, it is necessary for the taker of the affirmation who has read it to the blind or illiterate person to give a certificate as to a number of matters.  As the contents of the above rule indicate, these include that the affidavit was read and explained to the deponent and that he or she appeared perfectly to understand it and that the person made their mark on the document in the presence of the taker.  The requirement for a certificate is designed to eliminate the risk that a blind or illiterate person is putting his signature to and declaring the truth of statements on a document when he does not know what they are.  The risk is that the deponent might mistakenly give the appearance of agreeing to facts that he does not. In order to provide a greater level of assurance that proper procedures have been followed, the categories of persons who are able to qualify to be a “taker” are limited to those whose qualifications provide a reasonable level of assurance that they will

ensure that proper procedures have been followed and that their word, that that is so, can be relied upon.

[46]     Similar  problems  are  presented  in  the  case  where  the  deponent  has  no adequate English to enable him or her to swear to an affidavit in that language.  In that case, as common sense would suggest, the deponent is permitted to provide a non-English  affidavit.    However there  are mandatory conditions  attached  to  the deponent doing so which are described in r 1.15 as follows:

(2)      The  non-English  language  affidavit  must  be  accompanied  by  an affidavit by an interpreter to which is exhibited—

(a)      a copy of the non-English language affidavit; and

(b)      the  interpreter’s  translation  of  the  non-English  language affidavit

[47]     Again, in the interests of ensuring compliance with proper procedures, certain formalities have to be undertaken and in this case there is a requirement that the interpreter verify on oath or affirmation the translation.

[48]     In  the  present  case,  the  deponent  is  materially  illiterate  in  the  English language.  He is under a relevant disability in that full understanding on his part of the contents of the affidavit is dependent upon third parties providing advice to him as to what the affidavit means.   Those persons do not however themselves file anything with the court verifying their explanation.  The persons in question are the wife of the deponent, as well as his counsel and solicitor who apparently speak both English and Mandarin.

[49]     The circumstances of this case have some similarities to the 19th century English decision of Re Longstaffe.7    In that case, it had been established in cross- examination that a defendant, who had given an affidavit sworn with the usual jurat, could only read imperfectly and was able to write nothing but his own name.  The managing clerk of the solicitor for the defendant deposed that he had prepared the affidavit from the defendant’s personal instructions; that he had carefully read them

over to the defendant before he swore the affidavit and that the defendant appeared

7      Re Longstaffe (1885) LTR 681.

to understand them.  Kay J determined that the affidavit should not be read.  He said that the deponent was strictly speaking an illiterate witness and that there was “no pretence for saying that he is able to read over an affidavit for himself”.  The Judge noted that he had no evidence of the Commissioner before whom the affidavits were sworn but he did have the affidavit of the managing clerk to which I have made reference above.  The clerk said that before the affidavits were sworn he carefully read them over to the deponent who appeared to understand them.  Kay J then said:

But he abstains from saying that he read them over in the presence of the Commissioner, and I must therefore infer that they were not so read over, and that the Commissioner did not know the facts, and therefore did not satisfy himself that the deponent understood the affidavits.

[50]     The deponent in this case, by his own admission, is only able to understand about 50 per cent of a document that is written in English.   I understand that his evidence is that he can reach completion of understanding by using a computer- based translation device, his dictionary and with the assistance of his present wife. The level of literacy of the deponent is such that he would have an incomplete understanding of the affidavit unless it was explained to him.   It does not comply with the explicit wording of the rule or with the spirit and objectives of the rule, for a deponent who has severe difficulty with reading, as  I have explained that term above, to affirm an affidavit on the basis that he has an understanding of it based upon the combined process of his reading it, using a computer application and by having it explained to him (to the extent that he could not understand it), by third parties on some previous occasion.   That does not represent compliance with the rule.

[51]     I have given some consideration to the appropriate procedure to be followed in cases such as the present, where a person who has severe language difficulties wishes to swear an affidavit in a New Zealand court.   One alternative that I have considered is whether the deponent could appropriately swear an affidavit in accordance with r 9.84.   In the circumstances of the present case, Mr Deliu drew attention to the qualifying words in r 9.84 that the person is unable to read or has severe difficulty in reading.   Mr Deliu said that there was no evidence that the plaintiff was a person who had such an inability or severe difficulty.   However, I consider that r 9.84 cannot be read in isolation and needs to be considered against the

background of why there are requirements for certification by the person taking the affirmation.   If the deponent through lack of facility with written English has less than a complete understanding of what a document means and depends upon another person to explain it to him, then the rationale behind the rule takes effect.

[52]     Upon  further  reflection,  however,  I  do  not  believe  that  r  9.84  is  the appropriate procedure in the circumstances of the present case.  That is because the deponent essentially requires the services of a translator in order to properly understand the contents of his affidavit as required by law.   If the services of a translator are required, then the appropriate procedure under the HCR is that set out in r 1.15.   Unless the requirement for the affidavit in the foreign language to be accompanied by an interpretation by a recognised interpreter occurs, the court processes  could  be distorted by the receipt  of  evidence  which  is  unconsciously misleading.

[53]     I do not therefore consider that the steps that were taken in this case satisfy the requirements for a valid affidavit and the affidavits of the plaintiff are not to be read in the proceeding.

Further steps in the proceeding

[54]     The result of the direction that I have given in relation to the affidavits that the plaintiff has filed is that there is no evidence before the court which supports the opposition to the interim application which the plaintiff puts forward.   It will be necessary for further argument to be heard on this point.  At a future hearing the court would consider argument from each side which would essentially assist me to determine whether the plaintiff, having failed to comply with the rules of court in regard to the affidavits, ought now to be given an opportunity to make a second attempt to file valid affidavits.  Issues of costs would also have to be considered.

[55]     If the court concludes that no replacement affidavits should be filed, then a decision will be made following the next hearing.

[56]      If the outcome is that the court concludes that leave would be appropriate, then the proceeding will need to be adjourned further in order to permit the filing of replacement affidavits and thereafter to hear argument on both of the applications.

[57]     The proceeding requires a further half day fixture before me.  The Registrar advises that 5 July 2016 is a suitable date and the hearing will proceed on that date. The present position being that the affidavits which the plaintiff has filed are not admissible, there is no evidence to support his position.  That situation has not been brought about by fault on the part of anyone but the plaintiff and his advisers.   It does  not  necessarily follow  that  he  should  now be  allowed  to  file  replacement affidavits.  That is however one possibility that may need to be considered. If it is the intention of the plaintiff to seek such a direction then an application seeking such orders (and any other directions) ought to be filed to that effect.  I will consider that, and any other directions that are sought, at a further hearing.  If the plaintiff is minded to file any affidavit in support of an application to file further evidence in support of the directions application (as opposed to evidence on the substantive issues) then he is to do so within 10 working days.   The defendant will have 10 working days to file a notice of opposition and affidavit in support and then the plaintiff another five working days for any affidavit in reply.  All dates are from the date of this judgment.   Counsel should file brief submissions not exceeding eight pages on each side ahead of that hearing.

[58]     It will of course be desirable for the parties to come to agreement on any aspects of the case that the court truly needs to determine.  Because it is not clear what matters have been agreed, it would be helpful if before any resumed hearing takes place, counsel could file an agreed statement of the issues which remain to be dealt with.  In that way the court will avoid overlooking matters that it was not aware

that the parties wished to have determined.

J.P. Doogue

Associate Judge