White v Maxwell HC Auckland CIV 2006-092-3011

[2008] NZHC 2457

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2006-092-3011

BETWEEN  GRAEME WILLIAM WHITE AND DOROTHY EDITH WHITE Plaintiffs

ANDFANTAIL GROVE EXPORT LIMITED Second Plaintiff

ANDFRANCIS GAIL MAXWELL, BARRY LYNDON MAXWELL AND NORMAN DAVID GRAY

First Defendants

ANDFANTAIL GROVE FLOWERS LIMITED Second Defendant

ANDBARRY LYNDON MAXWELL, GLEN SIMON MAXWELL AND KEREN JOY MAXWELL

Third Defendants

Hearing:         31 July 2008 (Heard at Rotorua)

Appearances: PL Borich for Plaintiffs

G Kohler for Defendants

Judgment:      31 July 2008

ORAL JUDGMENT OF ASHER J

Solicitors:

Rice Craig, PO Box 72 440 Papakura
Tetley-Jones Thom Sexton, PO Box 111, Auckland

Copy:

GJ Kohler, Barrister, PO Box 4338, Auckland

WHITE & ORS V MAXWELL & ORS HC AK CIV 2006-092-3011 31 July 2008

[1]      This civil trial is set down for a four-day hearing on 8 September 2008.  A

one-day settlement conference has been set down for 4 August 2008.

[2]      The case concerns the plaintiffs’ claim for the balance owing for the sale of a business, and the defendants’ defence and counterclaim in which misrepresentations as to the quality of the business sold are alleged.  The claim is for $100,000 and the counterclaim now stands at $761,000.

[3]      The plaintiffs seek an adjournment.   A number of grounds are raised.   In particular,  Mr Borich  for  the  plaintiffs  emphasises  the  defendants’  delays  in complying with timetable directions for the filing of briefs.   The bulk of the defendants’ briefs, which set out the substantive counterclaim issues, were served on

12 June 2008 and the forensic accountant’s brief on 16 July 2008.  Mr Borich points out that the service of the bulk of the briefs was three-and-a-half months after the directed date and the service of the forensic accountant’s brief, four-and-a-half months late.  Mr Borich criticises the contents of a number of the briefs and points to two particular difficulties:

a)       He  has  been  recently  informed  by  the  accountant  briefed  for  the plaintiffs, that she does not feel able to respond to the defendants’ accountant’s brief, and that therefore a further accountant needs to be briefed.

b)He had organised his professional timetable on the basis that he would have been able to have completed his pre-trial preparation by the end of June.  Because of various commitments he does not have the time necessary to prepare given the timetable slippage.

[4]      Mr Kohler opposes the  adjournment on behalf of the defendants.   While acknowledging timetable slippage, he submits that there has been fault on both sides. He submits that the plaintiffs should be able to get ready in time for the trial.

[5]      I accept that the slippage in the timetable has placed the plaintiffs under pressure and that to prepare will be difficult for the plaintiffs’ legal advisers. Nevertheless, I am not persuaded that an adjournment should be granted.

[6]      The defendants’ briefs having been received on 12 June and 16 July, there is in my view sufficient time for the plaintiffs to respond.  Their briefs will obviously be late and that will in turn place pressure on the defendants, but that is often the way in civil trials such as this.  It should be possible to brief a further forensic accountant in the time available.   There is a substantial  body of  such  accountants  now  in Auckland and many of them are prepared to work on short notice.

[7]      There is force in Mr Kohler’s point that the accounting issues are not of great complexity.  The claim is for reliance loss and not expectation loss and will therefore be largely a matter of reliance on existing material.  While there undoubtedly may be some difficult issues of opinion on the causes of the problems in the business, those problems and the issues relating to them have been on the table for a number of months, if not longer.

[8]      As  to  the various  criticisms  that  Mr Borich  has  raised  in  relation  to  the content of the defendants’ briefs, some of the points he makes appear to have force. However, they all appear to be matters that can be dealt with at trial.  They do not in themselves warrant any postponement.

[9]      I am sympathetic to Mr Borich’s dilemma and the pressure that this will place on him.  However, regrettably such pressures are a feature of this sort of litigation and it may be that he will have to get some assistance in that regard.

[10]     The application for adjournment is declined.

…………………………………

Asher J