TWISS V CANNELL & ANOR HC CHCH CIV-2009-409-0584

TWISS V CANNELL & ANOR HC CHCH CIV-2009-409-0584 28 September 2009IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY CIV-2009-409-0584BETWEEN KEVIN GERARD TWISS Plaintiff AND SUZANNE MARY CANNELL AND PETER EDWARD CANNELL Defendant Hearing: 28 September 2009 Appearances: Mr O Paulsen for for Plaintiff Ms Cannell in person Judgment: 28 September 2009ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE [Adjournment Application]Counsel: Cavell Leitch Pringle & Boyle, P O Box 799, Christchurch Mr G M Abbot, P O Box 185, Christchurch Mr Clay, Clarendon Chambers, P O Box 2217, Christchurch (leave to withdraw)[1] When this matter was called before me today Mr Clay who is counsel and Mr Abott who is the solicitor on the record in each case for the defendants sought leave to withdraw. They have not been able to obtain instructions. I granted Mr Clay leave to withdraw as counsel but the position of Mr Abott is reserved in the meantime. Ms Cannell does not have alternative counsel arranged. She told me quite frankly that the problem has been that she cannot pay the lawyers. I understand that it would be her choice if possible to pay those lawyers and have them continue but for various reasons that has not been possible. She seeks a deferment of the case to get another lawyer. [2] Mr Paulsen for the plaintiff says that this matter should proceed today. He says that the defendant has been in occupation of the business since November 2008. His client handed over possession of the business but has never received the Mt Pleasant properties which were the consideration that he was to receive under the contract and also he has been required to pay outgoings on the business without having the income. Mr Paulsen said that the defendant has already had an indulgence in this matter and been permitted to file papers late by way of defence. [3] It is of concern of course when a case with some complexity as this one has comes before the Court and one side is not represented by counsel. There is a risk of injustice requiring parties to proceed in those circumstances. However in this case I consider that the direction of the Court must be that the matter proceeds to day. My reasons briefly are these. [4] Firstly there is no certainty that if the matter is put off that the defendant would be able to engage alternative counsel, the same problem is going to be encountered again – lack of financial resources. [5] This is a case where the defendant is in possession of a property which is the subject of the dispute. The position is most unsatisfactory from all points of view and the Court must do what it can today to try and solve the problem that has arisen and I therefore determine that even although that will mean Ms Cannell will not havethe advantage of being represented by counsel I am required to take that course and direct that the matter proceed. _____________ J.P. Doogue Associate Judge