Walker, Dick & Associates v Best Pacific Institution of Education Limited
[2013] NZHC 378
•1 March 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2011-404-003228 [2013] NZHC 378
BETWEEN WALKER, DICK & ASSOCIATES Plaintiff
ANDBEST PACIFIC INSTITUTION OF EDUCATION LIMITED
First Defendant
ANDANITA M FINNIGAN Second Defendant
ANDANITA FINNIGAN AND ELLIS GOULD TINOS TRUSTEE LIMITED, SUED IN THEIR CAPACITY AS TRUSTEES OF THE TINOS TRUST
Third Defendants
Hearing: 25 February 2013
Appearances: Mr M C Black for Plaintiff
Mr S J Neville for Defendants
Judgment: 1 March 2013
JUDGMENT OF ASSOCIATE JUDGE DOOGUE
This judgment was delivered by me on
1 March 2013 at 3 pm, pursuant to
Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
M C Black, Barrister, Auckland – [email protected]
Ellis Gould, P O Box 1509, Auckland – [email protected]
WALKER, DICK & ASSOCIATES V BEST PACIFIC INSTITUTION OF EDUCATION LIMITED & ORS HC AK CIV-2011-404-003228 [1 March 2013]
[1] The defendant has filed an application for the recall of part of the judgment which I issued on 24 August 2012, following a hearing which took place on 13
August 2012.
[2] The recall application relates to the part of the judgment where I dealt with the application made by the plaintiff for particulars of the defendants' allegations that over a five year period, from October 2005 to February 2011, during which the plaintiffs provided accountancy and advisory business services to the defendants, they had substantially overcharged the defendants. I dealt with this at paragraphs 44 to 50 of my judgment. I do not intend to set out in detail what I said. Underpinning that part of my decision was the assumption that while the defendants had said in their statement of defence that they would provide particulars, they had in fact failed to do so.
[3] The area in which particulars were sought related to the alleged overcharging of fees to the first defendant, totalling $132,768, and to the third defendant,
$169,589.50.
[4] The position of the defendants (applicants in the present proceeding) is that I must have overlooked the fact that a notice providing particulars covering this ground had indeed been provided on 26 March 2012. Without going into the detailed contents of the memorandum of particulars, the approach that was taken was for the defendants to identify the broad area in regard to which they claimed they had been overcharged and then set out what they considered was a reasonable amount of charges that the plaintiff ought to have limited its charges to.
[5] I have no recollection of the circumstances of the preparation of the part of the judgment which has been challenged by the application for recall of judgment. Doing the best that I can to reconstruct the probable approach that I took, it seems to me that I must have overlooked the notice of particulars that the defendants had provided. I consider it unlikely that I would have concluded that the particularisation which they had offered of the defence/counterclaim was inadequate without some detailed supporting reasons. There is no critique or detailing of the
statement of particulars which would usually be undertaken in a situation of this kind.
[6] For the foregoing reasons, I believe on balance that the grounds upon which the defendants base their application are correct.
[7] The power to recall judgment is contained in rule 11.9 which is to the following effect:[1]
11.9 Recalling judgment
A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.
[1] High Court Rules, r 11.9.
[8] The circumstances in which that power is able to be exercised were described in the judgment of Wild J in Horowhenua County v Nash (No 2):[2]
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[2] Horowhena County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
[9] There have been a number of authorities decided since the Horowhenua County. I agree with the following statement by the authors of McGechan on Procedure:[3]
[3] McGechan on Procedure (online looseleaf ed, Brookers) at HR11.09.01(4).
Applications of the third category include where:
(a) The Judge failed to determine an issue that was properly put to him: Brake v Boote (1991) 4 PRNZ 86 (HC), or misapprehended counsel’s submissions: Cynotech Securities Ltd v People Ltd (No 2) HC Auckland CIV-2008-404-
1559,4 March 2009.
(b) The Judge overlooked a matter, for example, that a party had applied to amend the orders it sought: Matua Finance Ltd v Bank of New Zealand HC Auckland CP490/04, 4 August 1995; or that a party had applied for the Judge’s recusal but the application had not reached the Judge before he
delivered his judgment: Greymouth Petroleum Ltd v Solicitor-General HC Wellington CIV-2009-485-1425, 3 February 2010.
[10] I consider that there is precedent to support the conclusion that the fact that the judge overlooked part of the evidence or submissions of a party, other than in matters which are minor or trivial or otherwise insignificant, provides a proper justification for exercising the jurisdiction under rule 11.9.
[11] I accept in this case that when I came to prepare the judgment, I overlooked the fact that the defendant had provided the detailed particulars setting out the quantum of what it alleged the plaintiff was overcharging for and how that had been arrived at.
[12] Because I overlooked the existence of the statement of particulars which the defendants had provided I did not, of course, consider whether the statements contained in the further particulars provided what the defendants are required to provide in order to satisfy the obligations that they have under the rules.
[13] Before I briefly consider that issue, it will be helpful to make reference to a decision of the High Court on the subject of particulars. In Cadbury Limited v Effem Foods Limited, Rodney Hansen J cited the following passage from Price Waterhouse v Fortex Group Limited with approval:[4]
[4] Cadbury Limited v Effem Foods Limited HC Auckland CL39/02, 5 May 2003.
[11] Both sides relied on the following passage from the judgment of the Court of Appeal in Price Waterhouse v Fortex Group Limited (CA 179/98, 30 November
1998) as a correct summary of the function of the statement of claim and the
obligation to provide particulars:
“The object of a Statement of Claim is to ‘state’ the ‘claim’, so that the Court knows what it is to rule upon, and the Defendant knows the case which it must meet. As a matter of practicalities, this initial ‘statement’ is not at the level of a full disclosure of all evidence and documentation. It is of course an abbreviated summary ‘statement’ of the basic facts said to give rise to the claim, and of the relief which is sought.
It is the level at which such abbreviation is to be set which causes ongoing difficulties. There is, of course, an eternal tension between Plaintiffs who wish to keep content as wide and general as possible, allowing maximum room to cover oversight and further developments, and Defendants who wish to narrow issues and impose restrictions to the maximum possible degree. Determinations, with respect, are not greatly assisted by very
general labels such as pleading the ‘general’ nature of matters claimed, or mantras as ‘what not how’. While they grasp an idea, they afford little hard guidance. Nor, with respect, does it greatly help to talk in terms of ‘facts’ (to be pleaded) and ‘evidence’ (for trial) as if there were some bright-line distinction between the two. There is not. ‘Facts’ can merge into ‘evidence’ without any clear dividing line.
In marginal cases, it is better to avoid generalities and rules of thumb, and to return to principle. The pleader and Court simply ask ‘in the circumstances of this claim, is that statement sufficiently detailed to state a clear issue and inform the opposite party of the case to be met?’. This is not, under modern practice, simply some minimum which a Defendant needs so as to be able to plead. It is intended to supply an outline of the case advanced, sufficient to enable a reasonable degree of pre-trial briefing and preparation. Discovery and interrogatories are only an adjunct, not a substitute for pleading.
In the result, and particularly in complex cases, a rather more detailed factual narrative has come to be required than was the nature in earlier and simpler times. That does not require the full detail which later will be contained in a brief of evidence. Nor does the modern requirement for pre- trial exchanges of briefs dilute the earlier and differently based requirement for sufficiently particular pleading. What is required is an assessment based on the principle that a pleading must, in the individual circumstances of the case, state the issue and inform the opposite party of the case to be met. As so often is the case in procedural matters, in the end a common-sense and balanced judgment based on experience as to how cases are prepared and trials work is required. It is not an area of mechanical approaches or pedantry. ”
I have emphasised the concluding passage as a convenient statement of the approach
I intend to take.
[14] I respectfully agree with that statement of principle.
[15] It must be open to any party who is charged with professional services to be able to challenge the global amount of those charges, rather than providing the overall figure of overcharging and then allocating it in a detailed way across the various invoices. At the other end of the scale, it would not be sufficient for the party claiming to have been overcharged to provide nothing more than a figure representing what it says the total of the overcharging was.
[16] In essence, what the defendant in this case has said is that over the period of the retainer which ran for some years, the plaintiff provided accountancy and advisory services which, having regard to reasonable charging practices and prevailing charging rates, was worth a certain amount. It then breaks down the overall charges into main component areas. An analysis is offered both of the work
type, the level of seniority of employees who carried out the work, contrasted with the seniority of the persons who actually did carry out the work, and an analysis of how much the overcharging allegedly came to in each of the years in question.
[17] The Court has to make a broad judgment about whether this is sufficient material to enable the plaintiff to identify what it is that the defendants are putting in dispute so that it and its advisers can decide what legal matters they will have to be prepared to argue at the trial and what evidence they will have to have available to justify the charges and negative the claims of overcharging.
[18] Viewed in this light, there seems to me to be little risk that the plaintiff will find that there has been a deficiency in the particulars provided, giving rise to a risk that something unexpected might emerge at the proceedings which had not been anticipated and resulting in an injustice to the plaintiff.
[19] The next point concerns the submission by Mr Black that even if all that was accepted, such particulars as had been provided still did not go far enough because they did not identify which invoices actually reflected the alleged overcharging.
[20] In some cases it might be helpful to examine the issue of overcharging on an invoice by invoice basis to assist analysis of at exactly what point the alleged overcharge was committed. But given the way that the defendant has framed its claims of overcharging, it is quite clear to me that the plaintiff will be able to meet those allegations without information on an invoice by invoice basis.
[21] Mr Black submitted that if the Court sets aside part of the judgment relating to the further and better particulars, then that would also open up other parts of the judgment relating to the further and better discovery application which his client had filed. While he did not put it on that basis, I understand that Mr Black's reasoning is that if the order to the extent that it favours the plaintiff is set aside, then in the interests of even-handedness the Court ought to set aside those parts of the judgment which are favourable to the defendants and in which the Court overlooked submissions which Mr Black said the plaintiff made.
[22] I do not agree with that approach, with respect. I consider that it is procedurally undesirable for parties to attempt to obtain orders for the recall of judgments by filing memoranda. Indeed in this case, I directed that an interlocutory application needed to be filed otherwise there would not be adequate identification of the issues which the Court had to consider in relation to the application. I do not consider that the type of additional orders that Mr Black wants could in fact properly be made.
[23] The next matter that I deal with is one that was not the subject of the application or the opposition. It concerns whether the Court ought to give a case management direction that the parties’ experts ought to confer pursuant to rule 9.44 of the High Court Rules prior to the date of trial. Even though the parties are not far away from commencing the exchange of briefs in this proceeding with the trial date being 29 April 2013 and the first briefs being due 11 March 2013, I consider that such a conference could well be advantageous. If the two experts giving evidence on the propriety of the accounting firm’s charges were to meet the scope of the dispute between them could be marked out with some precision and hopefully issues that are not truly going to be in dispute at the trial would be cleared away and the parties may be assisted to reach a settlement. Given that this proceeding is estimated to take eight days at trial, this last point is an important one. Both counsel agreed that such a conference ought to be convened.
[24] Subsequent to the hearing, Ms Neville agreed with Mr Black that there ought to be a conference of experts which will take place on the basis that the legal advisors are not to be present and which will be followed by the experts preparing the joint witness statement that rule 9.44 contemplates without the assistance of the legal advisors. I make an order pursuant to rule 9.44(1)(a)-(e) by consent.
Conclusion
For the above reasons I grant the defendant’s application to recall judgment. Costs
on the application are reserved.
J.P. Doogue
Associate Judge
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