Worldclaim New Zealand Limited v Sayers

[2019] NZHC 973

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-409-000192

[2019] NZHC 973

BETWEEN

WORLDCLAIM NEW ZEALAND LIMITED
Plaintiff

AND

GUY EDWARD SAYERS

Defendant

Hearing:	6 May 2019
Appearances:	L A Merrick for Plaintiff A J Davis for Defendant
Judgment:	6 May 2019

ORAL JUDGMENT OF GENDALL J

[1]    Before the Court is an application by the defendant to strike out the plaintiff’s proceeding here together with a supporting affidavit of the defendant Mr Sayers. The strike out application and supporting affidavit were filed on 29 March 2019 and served on the plaintiff on 4 April 2019. Mr Davis appeared before me today as counsel for the defendant. Ms Merrick appears as counsel for the plaintiff and indicated to the Court that she has no instructions in this matter. It is noted that the strike out application has not been opposed by the plaintiff, nor before me did Ms Merrick indicate there were any submissions to be advanced on behalf of the plaintiff in opposition to the strike out application.

[2]    The essence of the strike out application relates to a number of matters. First, these proceedings were stayed by Davidson J in this Court on 15 October 2018 until further order of the Court was made.

WORLDCLAIM NEW ZEALAND LIMITED v SAYERS [2019] NZHC 973 [6 May 2019]

[3]    Secondly, a freezing order had been made in this Court on 18 May 2017 relating to matter CIV-2017-409-1319 which was varied by order dated 29 November 2017. That freezing order has now been discharged.

[4]    Thirdly, the stay application before Davidson J was granted because the plaintiff had failed to pay security for costs of $30,000 which had been awarded by this Court with timetabling of orders made at an earlier time.

[5]    Next, it is clear from the file and submissions advanced before me that the plaintiff has taken no further steps in this matter since the order staying these proceedings dated 23 October 2018 was made.

[6]    Lastly, in all the circumstances in this case I am satisfied that for whatever reason the plaintiff has simply failed to prosecute its claim in this proceeding and that it is just and equitable in all the circumstances prevailing here that these proceedings should be struck out. Effectively, the defendant’s application to strike out the plaintiff’s proceeding is unopposed.

[7]    For all these reasons the application succeeds. Orders are now made as follows:

(a)An order is made striking out the plaintiff’s proceeding in this matter CIV-2018-409-192.

(b)Costs should follow the event in the normal way and an order is now made for the plaintiff to pay the costs of and incidental to this application on a category 2B basis together with disbursements as fixed by the Registrar.

...................................................

Gendall J

Solicitors:

Duncan Cotterill, Christchurch Clark Boyce, Christchurch