COTTRELL V DAWSON HC CHCH CIV 2005-409-001758

COTTRELL V DAWSON HC CHCH CIV 2005-409-001758 4 November 2005IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV 2005-409-001758BETWEEN ANTHONY RICHARD COTTRELL AND HUGH CRISPE COTTRELL Aplicants AND JAMES HURREN MARTIN DAWSON AND DANEFORD HECTOR PIERCE DAWSON Respondents Hearing: 4 November 2005 Appearances: NRW Davidson QC for Applicants R A Fraser for Respondents Judgment: 4 November 2005JUDGMENT OF HON JUSTICE JOHN HANSEN[1] The Applicants and Respondents in this matter are long established solicitors in Christchurch and practised for many years in partnership. They obviously fell out. The partnership was dissolved and, as is sadly often the case, it has led to a bitter dispute between them. [2] There was a part hearing in front of the Arbitrator which dealt with the provisions of clause 3(2) of the partnership agreement. The Cottrells did not accept the Arbitrator's interpretation of that clause, essentially contending that the clause was too wide to be applied. I suppose they are contending it should either be struck out or ignored completely by the Aribtrator. [3] A document purporting to be an appeal pursuant to the Arbitration Act was filed on 4 August. It actually sought leave on the basis the decision was wrong inlaw. On 31 August the matter came before Fogarty J by way of the Duty Judge callover. It became apparent at that stage that leave was not required because there is a right under the Arbitration Act to appeal points of law. Fogarty J recorded in his minute:[2] The parties have agreed that the proceedings continue on the basis that the motion filed is a notice of motion by way of appeal.He then set the substantive matter down for hearing in front of me today. [4] Fogarty J also made a timetable order that the Appellants file a more particularised notice of appeal and any affidavit in support within 14 days with the Respondent filing any notice of opposition and affidavits in support seven working days thereafter. That timetable was not complied with by the Cottrells. Senior counsel appearing accepts responsibility for that. It is unnecessary to refer to it further other than to say it is completely unsatisfactory. [5] The Dawsons have applied to strike out the appeal. The first ground is that all that was before the Court was a leave application and not an appeal. Sensibly Mr Fraser has not proceeded with that ground. [6] However, the solicitor concerned, Mr Savill, who has filed an affidavit dated 1 November, essentially challenges the minute of Fogarty J. He is saying that there was no agreement by the Dawsons that the notice of motion would be treated as a notice of motion by way of appeal. If that is the case, given that this minute was forwarded on 2 September, it is extraordinary that such an important point was not challenged in any way until the strike out application was lodged. If there was a mistake on such an important point, where the Judge has recorded a non-existent agreement, it was incumbent on the solicitor to bring the matter back to the Court and advise the Court at some earlier stage. [7] The matter has proceeded on the basis that under the Arbitration Act an appeal is to be in Form 108, is to be commenced by way of originating application, and is to be filed within three months. The part Award was delivered on 7 July and, allowing for weekends, Mr Fraser submits that the final day for filing an appeal inproper form pursuant to the Act was 10 October. That document was not filed until 27 October. [8] There is another aspect which is perhaps equally extraordinary. Counsel in the arbitration are Mr Davidson and Mr Hicks. I have been informed from the Bar by Mr Davidson, specifically as an officer of the Court, that Mr Hicks was aware of the appeal being filed and that it was treated by counsel in the arbitration as simply a holding matter to preserve rights and that the arbitration would recommence on Monday and conclude following the final hearing; that it was never the intention that the substantive appeal filed would be disposed of before the arbitration was finalised and the Award given by Mr McIntosh. [9] Mr Hicks does not appear in this matter and there is no information from him. However, I believe that I am bound to accept what has been said from the Bar, given by counsel specifically as an officer of this Court. That would mean the situation is most unfortunate. I can only assume that counsel as senior as Mr Hicks made those statements to Mr Davidson on instructions. I cannot believe such senior counsel would operate without instructions. If that is the case effectively the Dawsons must have given countermanding instructions to Mr Savill to pursue this strike out. [10] The matter is complicated further because nobody appearing before this Court, until a memorandum was filed by Mr Davidson on 27 October, has raised the issue that this was simply a holding appeal that did not need to be heard until the arbitration had concluded. If the Court had been advised of this, as it should have been, the matter would not have been given today's fixture. [11] In any event Mr Fraser accepts that this Court is left with a discretion as to how to deal with this matter. His position is essentially that the delay and refusal to comply with the Court order is so extreme that the appeal should be struck out. Furthermore, he alleges that it has been the deliberate policy of the Cottrells to delay the hearing of this appeal. Given the contents of the memorandum filed by Mr Davidson that, of course, is not the case if there was the agreement between Messrs Davidson and Hicks that I have referred to, and I am prepared for present purposes to accept there was.[12] The prejudice the Dawsons claim to be facing is that if the appeal is successful the hearing that is to recommence next Monday will be a waste of time and costs will be accordingly wasted. That appears to be contrary to Mr Hicks' position, again I presume on instructions. He seemed quite content for the appeal to be lodged, for the arbitration to be completed and the matter then revisited if necessary. [13] The delay here is considerable. No satisfactory explanation for it has been put forward. Undoubtedly senior counsel has had an extremely heavy workload, but as Mr Fraser rightly pointed out the Applicants are experienced lawyers and there was junior counsel. [14] Having balanced all the matters it seems to me that there is an appeal filed within time because of the consent agreement recorded by Fogarty J. There was no challenge to that consent agreement at the time by the Dawsons, and insufficient prejudice has been demonstrated that would show that this would be one of those rare occasions when the matter should be struck out for a first default. [15] Accordingly it follows that the application to strike out must fail and it is dismissed. [16] In the circumstances of this case it is proper that costs lie where they fall and these parties get on with completing this matter on the merits.Solicitors: Cottrell Law, Christchurch for Applicants (Counsel – N Davidson QC, Christchurch) R A Fraser & Associates, Christchurch for Respondents