Wyndham Contracting Limited v Webbline Agriculture Limited
[2021] NZHC 1341
•9 June 2021
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CIV-2018-419-000316
[2021] NZHC 1341
BETWEEN WYNDHAM CONTRACTING LIMITED
First Plaintiff
LINTEY CONTRACTING LIMITED
Second PlaintiffAND
WEBBLINE AGRICULTURE LIMITED
Defendant
Hearing: 1 June 2021 Appearances:
M J Thomas for Plaintiffs G Pratt for Defendant
Judgment:
9 June 2021
JUDGMENT OF ASSOCIATE JUDGE P J ANDREW
WYNDHAM CONTRACTING LTD v WEBBLINE AGRICULTURE LTD [2021] NZHC 1341 [9 June 2021]
Introduction
[1] The plaintiffs are agricultural contractors based in Southland. They purchased Göweil balers from the defendant, a Waikato-based company with a branch in Gore.
[2] The plaintiffs contend that the balers are faulty; it is said, amongst other things, that there are “severe issues with the chain breaking and tensioners failing”. They sue the defendant for misrepresentation, breach of implied condition as to merchantable quality and breach of implied condition that the goods were reasonably fit for purpose.
[3] The proceedings were filed in the Hamilton registry. The plaintiffs say this was a result of counsel error; the statement of claim should have been filed in the Invercargill registry where the causes of action sued upon arise.
[4] In the present interlocutory applications, the plaintiffs seek an order pursuant to rr 5.1(a) and 10.1 of the High Court Rules 2016 (the Rules) that the proceedings be transferred to the Invercargill registry and the trial be held there. It is said that they can be more conveniently and fairly tried in Southland.
Relevant legal principles
[5]Rule 5.1 of the High Court Rules reads:
Identification of proper registry
(1)The proper registry of the court, for the purposes of rules 5.25 and 19.7, is,–
(a)when a sole defendant is resident or has a principal place of business in New Zealand, the registry of the court nearest to the residence or principal place of business of the defendant, but when there are 2 or more defendants, the proper registry is determined by reference to the first-named defendant who is resident or has a principal place of business in New Zealand:
…
(2)Despite subclause (1)(a), if the place where the cause of action sued on, or some material part of it, arose is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides, the proper registry of the court for the purposes of subclause (1) is, at the option of the
plaintiff or the plaintiff first-named, as the case may be, the registry nearest to the residence of the plaintiff or the plaintiff first-named, as the case may be.
(3)If a plaintiff proposes to exercise the option conferred by subclause (2), the plaintiff must file with the statement of claim and notice of proceeding an affidavit by the plaintiff or the plaintiff’s solicitor stating the place where the cause of action or the material part of it arose, and that that place is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides.
(4)If it appears to a Judge, on application made, that the statement of claim has been filed in the wrong registry of the court, he or she may direct that the statement of claim or all documents filed in the proceeding be transferred to the proper registry.
(5)If it appears to a Judge, on application made, that a different registry of the court would be more convenient to the parties, he or she may direct that the statement of claim or all documents be transferred to that registry and that registry becomes the proper registry.
[6]Rule 10.1 of the Rules reads:
Venue and changing it
(1)The place of trial is the town where the registry of the court in which the statement of defence is to be filed is situated.
…
(4)Despite subclauses (1) to (3), the court may at any time order that the proceeding be tried at a place –
(a)that the parties consent to; or
(b)where the proceeding can be more conveniently or more fairly tried.
(5)When the court orders a change of venue, it may direct that all subsequent steps in the proceeding be taken at the place where the trial is to take place.
[7]In Consumer Council v Pest Free Services Ltd,1 the Court of Appeal held:
A change of venue should be ordered if on an overall consideration of [relative material] the Court is affirmatively satisfied that the action can be more conveniently and fairly tried elsewhere … The onus is on an applicant to satisfy the court ought not to be regarded as in some way especially difficult to discharge.
1 Consumer Council v Pest Free Services Ltd [1978] 2 NZLR 15 (CA) at 18.
[8] The Rules require not only an assessment of physical, financial and any other matters affecting convenience, but also the overall justice of the case.2
Analysis and decision
[9] I agree with the submission of Mr Pratt, for the defendant, that the plaintiff’s applications are best considered as an application for a change in the place of trial pursuant to r 10.1. Having said that, there is considerable overlap with r 5.1, especially where it is not in dispute that the plaintiffs could properly have filed the proceedings in the Invercargill registry (either Hamilton or Invercargill was available: rr 5.1(1) and 5.1(2)). As Ms Thomas submitted, the balers were collected from the defendant’s Gore branch, all breakdowns occurred in the Southland area on Southland farms and those breakdowns were attended to by the defendant’s mechanics from its Gore branch.
[10] Having elected to file in Hamilton (albeit a result of counsel’s error) the proceedings have been under way in the Hamilton registry for some considerable time and the real issue is now where the trial is to take place. The critical factors are convenience and fairness.
[11] The factors going to convenience and fairness are as follows and generally rank in the order set out below:3
(a)The parties: their location, impact of any likely absence of senior officers or staff, and the potential disruption to the business to the parties are relevant factors;4
(b)Witnesses: the number, location and convenience of each party’s proposed viva voce witnesses;
(c)Counsel: the convenience of counsel; and
(d)Delays at present court or at proposed new venue.
2 Morgan v Sovereign Assurance Co Ltd [2013] NZHC 1195 at [31].
3 AC Beck and others McGechan on Procedure (online ed, Thomson Reuters) at [HR10.1.04].
4 Consumer Council v Pest Free Services Ltd, above n 1 at 19.
[12] I address each of these factors in turn, although Ms Thomas, for the plaintiffs, placed particular emphasis on the number and convenience of witnesses as the principal reason why she says the proceedings should be tried in Invercargill.
(a)The parties
[13] As noted, both plaintiffs are located in Southland. The defendant operates a branch in Gore and unlike the plaintiffs, has ties to both the Waikato and Southland region.
[14] A trial per se will likely cause some disruption to the business of all parties, but on balance, this factor provides some support for a transfer to Invercargill.
(b)The witnesses
[15] Counsel for the defendant has identified six witnesses the defendant intends to call at trial. Five of those witnesses reside in the Waikato region; a sixth witness, Mr McLean, the farm machinery mechanic, works at both the Te Awamutu and Gore branches as needed.
[16] Ms Thomas advised the number of witnesses the plaintiffs intend to call will be more significant. The exact number of witnesses has not yet been finalised but it is anticipated that at least 12 witnesses will be called, a number of which are either no longer in the employment of the plaintiffs or are former clients of the plaintiffs. All of those witnesses will be from the Southland region, including an expert witness.
[17] Ms Thomas contended that this is the primary reason why the proceedings should be transferred to Invercargill and the trial held there. There will obviously be, she contended, lower travel and accommodation costs if the trial is heard in Southland.
[18] Mr Pratt contended that it is premature to determine the issue of inconvenience and cost to witnesses when no trial date has been set and the plaintiffs have not either finalised the exact number of witnesses they will call or served any briefs of evidence. He challenged Ms Thomas’ contention that a large number of farmer witnesses will be required by the plaintiffs. He argued that the defendant’s attendance to various call-
outs is a matter of record and that the fact of such attendances are generally not in dispute. Mr Pratt submitted that the real matters in dispute will turn upon the expert evidence.
[19] I reject Mr Pratt’s submission that it is premature to determine these issues. I accept that the trial date has not yet been set and that briefs of evidence have not been served. However, it is for the plaintiffs to decide how to run their case, including the witnesses they will call. It is clear that the solicitor and counsel for the plaintiffs have given consideration to the witnesses they will need to prove their case – and it may well be, as Ms Thomas contended, that it is the farmer witnesses giving evidence as to how the balers operated (including environmental conditions) which may prove to be crucial. The defendant has of course denied that the balers were not reasonably fit for purpose and has raised issues of causation, including a lack of maintenance.
[20]I find that this factor provides strong support for a transfer to Invercargill.
(c)Counsel
[21] The parties agree that the convenience of counsel is largely a neutral factor in this case. Ms Thomas is based in Invercargill and Mr Pratt based in Nelson. I do accept, however, that travel for Mr Pratt to Hamilton will be slightly easier and less expensive than travelling to Invercargill.
(d)Delays at present court or at proposed new venue
[22] This does not appear to be a factor in this case and neither counsel contended otherwise.
Conclusion
[23] Weighing all these factors and, in particular, the number, location and convenience of the witnesses, I conclude that the proceedings should be transferred to the Invercargill registry and the trial take place there. It is more convenient and fair that the trial take place in Southland. Both counsel referred me to a number of authorities but, as Mr Pratt submitted, ultimately each case really turns on its own facts. Here, the decisive factor is witness considerations.I further note that this
proceeding has a very strong connection to Southland. The only connection to the Waikato region is the location of the head office of the defendant company (although as I have accepted above, most of the defendant’s witnesses reside there). Had the proceedings been filed in the Invercargill registry in the first instance, it is likely that the defendants would have had difficulty persuading a court that they should be transferred to the Hamilton registry. The fact that the proceedings were mistakenly filed in Hamilton also bears on fairness. The overall justice of the case favours a transfer to Invercargill.
Result
[24] I grant the plaintiff’s applications for a transfer of the proceedings to the Invercargill registry and order that the proceedings are to be tried there. In accordance with r 10.1(5), all subsequent steps in these proceedings will now take place in Invercargill.5
[25] As to costs, I am of the preliminary view, that having succeeded, the plaintiff is entitled to costs and on a 2B basis plus disbursements. If the parties cannot agree on costs then written submissions (no more than three pages) are to be filed and served within 14 days.
Associate Judge P J Andrew
5 That will not of course preclude Mr Pratt from appearing by AVL. This hearing is a good example of how any further interlocutory applications might be dealt with. I was on an AVL link from Auckland, Mr Pratt was in Hamilton, and Ms Thomas was in Invercargill.