FINNIGAN v ELLIS [2017] NZHC 3291

FINNIGAN v ELLIS [2017] NZHC 3291

The Court granted leave to file the second amended statement of claim because defendants' requested clarification was provided and prejudice was not established; the application to adjourn was refused because defendants had long been on notice of the consequential loss claim and had access to the additional...

Source-derived case information.

Citation
[2017] NZHC 3291
Parties
First Plaintiffs: Peri Micaela Finnigan and Boris van Delden; Second Plaintiff: Wenzhou Hongliang Trading Co. Limited; First Defendant: Brian Robert Ellis; Second Defendant: Gerald Norman Williams; Third Defendant: James Neil Black
Court
High Court
Jurisdiction
New Zealand
Judgment Date
21 December 2017
Procedural Posture
Company Liquidation Proceedings and Creditor/liquidator Application Under Companies Act / Pre Trial Fixture Management Hearing (application to Amend Pleadings and Adjourn Trial)
Outcome
Leave granted to file second amended statement of claim; application to adjourn trial refused; leave reserved to defendants to apply for costs against former plaintiff Wenzhou; timetable amended.
Legal Topics
Liquidation, Reckless Trading, Trading While Insolvent, Amendment of Pleadings, Application for Adjournment, Costs
Company Law Insolvency Civil Procedure Liquidation Reckless Trading Trading While Insolvent Amendment of Pleadings Application for Adjournment +1 more

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Parties

Peri Micaela Finnigan and Boris van Delden

First Plaintiffs

Wenzhou Hongliang Trading Co. Limited

Second Plaintiff

Brian Robert Ellis

First Defendant

Gerald Norman Williams

Second Defendant

James Neil Black

Third Defendant

Procedural Posture

Company Liquidation Proceedings and Creditor/liquidator Application Under Companies Act / Pre Trial Fixture Management Hearing (application to Amend Pleadings and Adjourn Trial)

Legal Issues

  1. 1 Whether leave should be granted to file a second amended statement of claim after close of pleadings
  2. 2 Whether the trial fixture should be adjourned because of late discovery and translation of documents from China
  3. 3 Whether costs should be awarded against the discontinued plaintiff (Wenzhou) arising from its discontinuance

Ratio Decidendi

The Court granted leave to file the second amended statement of claim because defendants' requested clarification was provided and prejudice was not established; the application to adjourn was refused because defendants had long been on notice of the consequential loss claim and had access to the additional documents since late November yet did not act to prepare, so an adjournment was not justified; costs against the discontinued plaintiff were reserved with a timetable for applications.

Court Disposition

Leave granted to file second amended statement of claim; application to adjourn trial refused; leave reserved to defendants to apply for costs against former plaintiff Wenzhou; timetable amended.

Orders

  • Leave granted to file second amended statement of claim
  • Reserve leave to first and second defendants to apply for costs against Wenzhou Hongliang Trading Co Limited; any application for costs to be filed and served by 19 January 2018 and any response by Wenzhou to be filed and served on or before 2 February 2018; costs application to be referred to trial Judge