THE TANIWHA FAMILY TRUST V COLLINS PAPER HAULAGE LIMITED FORMERLY KNOWN AS CASTLEROCK PROPERTY HOLDINGS LIMITED HC AK CIV 2006-404-2200

THE TANIWHA FAMILY TRUST V COLLINS PAPER HAULAGE LIMITED FORMERLY KNOWN AS CASTLEROCK PROPERTY HOLDINGS LIMITED HC AK CIV 2006-404-2200 5 December 2006IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV 2006-404-2200BETWEEN COLIN CHARLES MCKAY AND BARRY ARTHUR SAPWELL AS TRUSTEES OF THE TANIWHA FAMILY TRUST Plaintiff AND COLLINS PAPER HAULAGE LIMITED FORMERLY KNOWN AS CASTLEROCK PROPERTY HOLDINGS LIMITED Defendant Hearing: 4, 5 December 2006 Appearances: CFL Godinet and J Ropati for Plaintiff AM Swan for Defendant Judgment: 5 December 2006RULING OF ASHER JSolicitors: John Ropati, Barrister & Solicitor, PO Box 37 396 Parnell, Auckland Ross & Whitney, Solicitors, PO Box 1822 Newmarket, Auckland Counsel: F Godinet, Barrister, PO Box 618 Shortland Street, Auckland AM Swan, Barrister, PO Box 5444 Wellesley Street, Auckland[1] I need to rule on application of Mr Swan for the defendant to amend the statement of defence and counterclaim. [2] The key issue that has been expressed to me by both counsel in their openings is whether the agreement for sale and purchase was just that and no more, or whether, rather, it was as the defendant asserts, an agreement to provide security only, while there was a debt owed by the Castlerock Group of companies to Dysart Timber Limited. The present statement of defence itself pleads at paras 13.2 and 13.3 that the agreements were for the purpose of providing security for the basis of full repayment of all debts to Dysart Timber Limited, and that the plaintiff would have no further interest in the agreement. [3] Mr Swan now seeks to put that pleading by way of two further affirmative defences. First, the arrangement at paragraphs 13.2 and 13.3 being an express term, and, secondly, on the basis that the arrangement constituted an estoppel which prevents the plaintiff from now seeking specific performance. [4] Mr Godinet, for the plaintiff, understandably opposes the amendment. However, he has fairly advised that he cannot claim any specific prejudice as a consequence of the amendment. This seems to me to be a proper assertion on his part, as the factual material covered by the amendments remains the same. [5] I am prepared to grant the amendment. However, the plaintiff is certainly entitled to an opportunity to prepare further submissions on the new defences of term and estoppel if it seeks it. [6] This is my interim decision. Counsel have now asked for further time to prepare submissions, which I am prepared to grant them. I think it fair that I give leave to Mr Godinet to come back before me if, when he is preparing his submissions, he discovers any actual prejudice arising from this amendment.. Asher J