M YOVICH & SONS LIMITED and D FULLER v W W PETERS, WAYNE PETERS LAWYERS AND THOMSON WILSON [2016] NZHC 330

M YOVICH & SONS LIMITED and D FULLER v W W PETERS, WAYNE PETERS LAWYERS AND THOMSON WILSON [2016] NZHC 330

Although further disclosure would have been preferable, the Court concluded plaintiffs had legitimate strategic reasons to withhold service to pursue settlement to save the farm, the alleged non‑disclosures did not materially mislead the Judge into making the extension orders nor cause sufficient prejudice to the...

Source-derived case information.

Citation
[2016] NZHC 330
Parties
First Plaintiff: M YOVICH & SONS LIMITED; Second Plaintiff: DIANNE FULLER; First Defendant: Hayley MacDonald trading as Wayne Peters Lawyers; Second Defendant: WAYNE WESLEY PETERS; Third Defendant: MICHAEL JEREMY BADHAM; Third Defendant: ARTHUR BROOKS FAIRLEY; Third Defendant: GRAEME JOHN MATHIAS; Third Defendant: VAUGHAN BEVAN SYERS; Third Defendant: GRANT LINDSAY CURRIE; Fourth Defendant: ASB BANK LIMITED
Court
High Court
Jurisdiction
New Zealand
Judgment Date
2 March 2016
Procedural Posture
Civil (professional Negligence / Breach of Fiduciary Duty; Interlocutory Review) / Application for Rescission of Interlocutory Extension Orders Following Ex Parte Extensions (post‑filing, Pre‑trial)
Outcome
Applications for rescission dismissed
Legal Topics
Extension of Time for Service, Rescission of Interlocutory Orders, Duty of Full and Frank Disclosure in Ex Parte Applications, Settlement Negotiations as 'good Reason', Limitation Issues, Conflict of Interest, Prejudice Assessment
Civil Procedure Professional Negligence Trusts Property Law Banking Law Solicitor Conduct High Court Rules Extension of Time for Service +6 more

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Parties

M YOVICH & SONS LIMITED

First Plaintiff

DIANNE FULLER

Second Plaintiff

Hayley MacDonald trading as Wayne Peters Lawyers

First Defendant

WAYNE WESLEY PETERS

Second Defendant

MICHAEL JEREMY BADHAM

Third Defendant

ARTHUR BROOKS FAIRLEY

Third Defendant

GRAEME JOHN MATHIAS

Third Defendant

VAUGHAN BEVAN SYERS

Third Defendant

GRANT LINDSAY CURRIE

Third Defendant

ASB BANK LIMITED

Fourth Defendant

Procedural Posture

Civil (professional Negligence / Breach of Fiduciary Duty; Interlocutory Review) / Application for Rescission of Interlocutory Extension Orders Following Ex Parte Extensions (post‑filing, Pre‑trial)

Legal Issues

  1. 1 Whether ex parte orders extending time for service should be rescinded for non‑disclosure or misleading statements
  2. 2 Whether plaintiffs breached the duty of full and frank disclosure when obtaining ex parte extensions
  3. 3 Whether ongoing settlement negotiations constituted 'good reason' under HCR 5.73 to extend service time

Ratio Decidendi

Although further disclosure would have been preferable, the Court concluded plaintiffs had legitimate strategic reasons to withhold service to pursue settlement to save the farm, the alleged non‑disclosures did not materially mislead the Judge into making the extension orders nor cause sufficient prejudice to the third defendants, and therefore the rescission applications must be dismissed; the ex parte extension orders stand.

Court Disposition

Applications for rescission dismissed

Orders

  • Applications for rescission dismissed
  • Costs to respondents (plaintiffs) on a 2B basis