ESTATE OF SMITH AND SMITH V THE MAORI TRUSTEE HC ROT CP8/02

ESTATE OF SMITH AND SMITH V THE MAORI TRUSTEE HC ROT CP8/02 27 April 2006IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY CP8/02BETWEEN ESTATE OF GWENDA LORRAINE SMITH AND RUSSELL GRANT SMITH Plaintiffs AND THE MAORI TRUSTEE Defendant Counsel: No appearance for Plaintiffs R Vigor-Brown for Defendant (by telephone) Judgment: 27 April 2006ORAL JUDGMENT OF BARAGWANATH JSolicitors: R Vigor-Brown, Rotorua for Plaintiffs Copy to: Mr J Smith, Tauranga[1] The Court has exercised much patience because of Mr Smith's status as a layman. The detail is recorded in my minute of 24 August 2005. [2] On 1 September 2005 Sharp Tudhope solicitors advised the Court that they had been instructed by Mr Smith. Noting the time limits expressed in the minute of 24 August they sought the exercise of the Court's discretion for a two week extension. I granted that by order of 1 September 2005. There followed a memorandum on behalf of the plaintiff dated 16 September 2005 seeking further time and by minute of 21 September 2005 I made an order in such terms. [3] In the minute of 5 April 2006 I recounted the unsatisfactory events for which Mr Smith was responsible which resulted in his non-appearance on that date. The minute concluded:[5] In the absence of Mr Smith I make no comment beyond the obvious one that he has been in default since 16 October 2005 and is at imminent risk of implementation of my minute of 24 August 2005. I have decided to adjourn this telephone conference until 9 am on Thursday 27 April 2006. I will take a good deal of persuading not to deal with the matter then in terms of my minute of 24 August 2005. [6] The costs of today are for a 20 minute hearing. There will be an order in favour of the Maori Trustee for his costs in any event unless Mr Smith can satisfy me that he did not receive notification of the fixture until yesterday. That point will be on the agenda for the hearing on 27 April.[4] I am today advised by the Court's registry officer of High Court at Rotorua that she has been unable to make contact with Mr Smith for today's telephone conference. She has telephoned the residential number provided (07 332 5455) but was told that Mr Smith does not currently live there. She was given two further cellphone numbers to try. One of them, 04 154 37648, resulted in the response "wrong number" the other, 021 049 0990, responded "either turned off or out of the area". Following up this morning with a telephone call to the residential number (332 5455) the registry officer was advised that Mr Smith had been texted last night on 04 154 37648 advising him of today's conference and asking him to get in touch with her but nothing further has been heard.[5] In these circumstances as foreshadowed in the minute of 24 August 2005 and emphasised subsequently I now give judgment on the basis that the whole of the settlement agreement remains in force including clause 7 so as to preclude any award of costs in relation to events up to the date of settlement 25 June 2002. [6] That leaves outstanding simply the question of costs for the litigation for the period following 25 June 2002. Mr Vigor-Brown has already provided submissions as to costs in relation to the period from 25 June 2002 up to and including 2 June 2004. He advises that he is to prepare further submissions relating to the period from 1 February 2005 to date. These submissions will be filed and served within 14 days. Since I do not return to Rotorua within a reasonable period I will deal with the costs issue in Auckland at a one hour fixture to be fixed by the Registrar. [7] Given Mr Smith's propensity to assert either that he has not been served or that he is not available for a fixture I reserve leave to Mr Vigor-Brown to apply for an order for substituted service in the event that personal service of the further materials including advice of the further fixture cannot conveniently be effected. [8] This conference has lasted 15 minutes. ___________________________ W D Baragwanath J