AVON PARNELL LTD v CHEVIN [2019] NZHC 2582

AVON PARNELL LTD v CHEVIN [2019] NZHC 2582

Leave to file the statement of defence was granted on conditions because the delay was not lengthy, the defendant had participated in the proceedings and earlier affidavits gave notice of his case, the defence disclosed an arguable basis such that refusal would risk miscarriage of justice, and the plaintiffs were not shown to suffer irreparable prejudice; accordingly formal proof was dismissed and conditional orders (including costs and timetable) were imposed.

Citation
[2019] NZHC 2582
Parties
First Plaintiff: Avon Parnell Ltd; Second Plaintiff: Ryan Matthew Leggatt; First Defendant: Peter Louis Chevin; Second Defendant: Clark Vincent Valmont; Second Defendant: Russell PKR Trustee Ltd; Third Defendant: Graeme Hayward Skeates; Fourth Defendant: Northern Investors Trustee Limited; Fifth Defendant: Viaduct Harbour Nominees Limited; Sixth Defendant: Basecorp Finance Limited
Court
High Court
Jurisdiction
New Zealand
Judgment Date
11 October 2019
Procedural Posture
Civil Proceedings Concerning Alleged Company Fraud, Constructive Trust and Breach of Authority / Application for Leave to File Statement of Defence Out of Time and Application for Formal Proof; Interlocutory Hearing and Orders Made
Outcome
Leave granted to the first defendant to file a statement of defence out of time on conditions; application for formal proof dismissed.
Legal Topics
Constructive Trust, Breach of Warranty of Authority, Leave to File Defence Out of Time, Formal Proof, Freezing Orders, Mortgage Security
Company Law Equity and Trusts Civil Procedure Fraud Constructive Trust Breach of Warranty of Authority Leave to File Defence Out of Time Formal Proof +2 more

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Parties

Avon Parnell Ltd

First Plaintiff

Ryan Matthew Leggatt

Second Plaintiff

Peter Louis Chevin

First Defendant

Clark Vincent Valmont

Second Defendant

Russell PKR Trustee Ltd

Second Defendant

Graeme Hayward Skeates

Third Defendant

Northern Investors Trustee Limited

Fourth Defendant

Viaduct Harbour Nominees Limited

Fifth Defendant

Basecorp Finance Limited

Sixth Defendant

Procedural Posture

Civil Proceedings Concerning Alleged Company Fraud, Constructive Trust and Breach of Authority / Application for Leave to File Statement of Defence Out of Time and Application for Formal Proof; Interlocutory Hearing and Orders Made

Legal Issues

  1. 1 Whether to grant leave under High Court Rules to file a statement of defence after the time limit
  2. 2 Whether the defendant disclosed a substantial ground of defence
  3. 3 Whether the delay was adequately explained

Ratio Decidendi

Leave to file the statement of defence was granted on conditions because the delay was not lengthy, the defendant had participated in the proceedings and earlier affidavits gave notice of his case, the defence disclosed an arguable basis such that refusal would risk miscarriage of justice, and the plaintiffs were not shown to suffer irreparable prejudice; accordingly formal proof was dismissed and conditional orders (including costs and timetable) were imposed.

Court Disposition

Leave granted to the first defendant to file a statement of defence out of time on conditions; application for formal proof dismissed.

Orders

  • First defendant to file and serve a statement of defence in response to the amended statement of claim and to issue a third party notice by 5 pm on Friday 18 October 2019
  • First defendant to pay the plaintiffs' costs on a Category 2B basis for both the first defendant's application for leave and the plaintiffs' application for formal proof