Whitford Properties Ltd (in liquidation) v Bruce

[2016] NZHC 1795

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-001977 [2016] NZHC 1795

BETWEEN

WHITFORD PROPERTIES LTD (IN

LIQUIDATION) Plaintiff

AND

ROBERT IAN BRUCE First Defendant

COUMAT LIMITED Second Defendant

GREGORY BRUCE HAYHOW Third Defendant

Hearing:	4 August 2016
Appearances:	M C Black for Plaintiff S Keall for First Defendant S Barter for Second and Third Defendants
Judgment:	4 August 2016

ORAL JUDGMENT OF GILBERT J

Solicitors:

Alexander Dorrington Lawyers, Auckland

Barter Law, Auckland

ECD Legal, Auckland

Counsel:

M C Black, Barrister, Auckland

S Keall, Barrister, Auckland

WHITFORD PROPERTIES LTD (IN LIQ) v BRUCE & ORS  [2016] NZHC 1795 [4 August 2016]

[1]      This judgment deals with a very late application by the first defendant to adjourn the trial.

[2]      The proceeding commenced on 8 August 2014.  It is scheduled to be heard next week, commencing on Monday, 8 August 2016, with five days having been allocated for the hearing.  The trial date was set at a conference on 23 October 2015 when pre-trial directions were made.

[3]      The  timetable  required  the  plaintiff  to  serve  its  briefs  of  evidence  by

30 May 2016  and  the defendants  to  serve their  briefs  of evidence no  later than

27 June 2016.   The plaintiff and the second and third defendants have exchanged their respective briefs of evidence.   The plaintiff has filed and served its opening synopsis. These parties are ready to proceed next Monday.

[4]      The first defendant, Mr Bruce, has taken little part in the proceedings because of funding difficulties.  However, on the afternoon of Friday 29 July 2016, Mr Keall, a barrister who has had no prior involvement with the case and who is not available for a trial next week in any event, was retained for the limited purpose of applying for an adjournment of the trial.  Mr Keall was provided with some, but not all, of the pleadings and Court documents.   Following his preliminary review of these documents over the weekend, which did not include reading any of the briefs of evidence, Mr Keall filed a memorandum on Monday, 1 August 2016, requesting an adjournment.  He explained that although Mr Bruce has not actively participated in the proceeding to date, he now “has an expectation he will be in funds in the future and therefore wish[es] to reassess participating in the upcoming trial”.

[5]      On the basis of his preliminary review of the file, Mr Keall considers that there are a number of steps that need to be taken by Mr Bruce.   These include providing discovery,  briefing  evidence,  filing an  amended  statement  of defence, filing a cross-claim against the third defendant seeking an indemnity in relation to the plaintiff’s claim, and preparing for the trial.   Mr Keall submitted that an adjournment would serve the interests of justice because:

(a)       the Court would be greatly assisted by all parties being represented by counsel;

(b)      this is the first request for an adjournment;

(c)       it would not greatly inconvenience the plaintiff; and

(d)it is likely to result in an improved trial bundle and give the parties an opportunity to prepare an agreed statement of facts.

[6]      Mr Keall filed a supplementary memorandum submitting that there would be significant prejudice to Mr Bruce if the proceeding is not adjourned for the reasons outlined in his earlier memorandum.

[7]      In accordance with a minute issued by Heath J on 2 August 2016, Mr Bruce has now supported his application with an affidavit in which he provides some personal background, including his earlier career in the police.  He explains that he has not taken any significant part in the proceedings for financial reasons.   He acknowledges that he must take responsibility for this.   However, he says that he expects to be in funds on 21 August 2016 and would like the opportunity of taking the steps Mr Keall has recommended.  This would require the case to be adjourned. If the case is adjourned, it is unlikely to be heard until July next year.

[8]      The  plaintiff  strongly  opposes  the  adjournment  application.    Mr  Black advises that the estimate of required trial time is generous.  The plaintiff would be willing to agree to reasonable latitude being given to Mr Bruce to enable him to pursue his claim for indemnity and to produce any additional documents or evidence. Mr Black considers that there will be sufficient time to enable this to be done without causing material prejudice to the other parties.

[9]      Mr Barter, for the second and third defendants, supported Mr Black’s position in his memorandum.   He says that the factual background is fully covered in the briefs that have already been exchanged by the parties and that the scope of any

contest is likely to be narrow.  This appears to be supported by Mr Keall’s optimism

that an agreed statement of facts is possible.

[10]     Mr Barter points out that all defendants face the same liability under the first and third causes of action.  Mr Bruce will obtain the benefit of the defence that will be mounted by the second and third defendants in relation to those causes of action because it will apply equally to him.  If the plaintiff succeeds on the second cause of action, which seeks relief only against Mr Bruce, Mr Barter confirms that Mr Bruce will be entitled to pursue his claim for indemnity against the third defendant.  They therefore have an interest in defeating that claim as well, which is for the same sum of money as claimed in the other two causes of action.

[11]     Mr  Barter  advised  at  the  hearing  today  that  his  clients  have  somewhat modified their position on the application.  This is because they now believe that any prejudice  to  them  can  be  accommodated  by  the  costs  proposal  that  has  been advanced by Mr Bruce.   Further, they see advantage to them in the evidence that Mr Bruce wishes to give being available at the hearing.   For those reasons, the second and third defendants take a neutral position in relation to this application. However, Mr Barter also confirmed Mr Black’s position that there is sufficient trial time next week to enable Mr Bruce to give that evidence and to produce any documents in support of it.

[12]     I am not prepared to grant the adjournment application.  The proceeding has been on foot for two years.  The trial date was allocated nearly a year ago.  Mr Bruce has had ample time to prepare for this trial.  If he could not afford to pay for legal representation, he could have applied for legal aid.  In my view, it would be quite unjust to the plaintiff if this matter was to be delayed for up to a year simply because Mr Bruce  belatedly  regrets  the  decision  he  made  to  take  no  active  part  in  the proceeding to date.  The plaintiff and the second and third defendants are entitled to have their claim heard without undue delay.  It would be wrong to visit on them the consequences of Mr Bruce’s last minute change of position.

[13]     Mr Bruce will not be unfairly prejudiced.   He is fully familiar with the relevant transactions and can participate in the hearing.   The other parties  have

indicated that they will accommodate Mr Bruce.   Subject to any directions by the trial Judge, they will allow Mr Bruce to produce relevant documents, give evidence and make submissions.  Mr Bruce will also be able to coat-tail on the defence that has been prepared by the second and third defendants.   There is no apparent impediment to him being able to pursue any claim for indemnity against the third defendant at a later date in the event that he wishes to do so.

[14]     An adjournment at this late stage would also be contrary to the public interest in ensuring the efficient use of court resources.  The application for adjournment has been made so late that it is not now possible to reallocate the trial time to another case or cases waiting in the queue.

[15]     For all of these reasons, it would be contrary to the interests of justice to grant the application for an adjournment.  It is accordingly declined.

[16]     Costs are reserved in accordance with counsel’s request.   I record that the

hearing occupied approximately one hour.

M A Gilbert J