LOMBARD FINANCE & INVESTMENTS LIMITED V NISBET HC WN CIV 2006-485-2836

LOMBARD FINANCE & INVESTMENTS LIMITED V NISBET HC WN CIV 2006-485-2836 30 October 2007IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CIV 2006-485-2836BETWEEN LOMBARD FINANCE & INVESTMENTS LIMITEDPlaintiff AND CRAIG GRANT SCOTT NISBETDefendant Hearing: 30 October 2007 Appearances: S Barker - Plaintiff T J Lamb - Defendant Judgment: 30 October 2007ORAL JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALLSolicitors: Buddle Findlay, Solicitors, DX SP20201, Wellington E W Gartrell, Solicitor, DX SP22519, Wellington Hughes Robertson, Solicitors, PO Box 2512, Wellington[1] On 12 October 2007, the defendant filed an application seeking to vary or rescind orders of this Court. In support of that application was an affidavit of Mr Gartrell sworn 12 October 2007. [2] The orders sought in the application are described as:"1. Orders varying or rescinding the orders made by Associate Judge D.I. Gendall on 8 October 2007 setting down a quantum hearing for these proceedings on 21 February 2008. 2. Orders varying or rescinding the order made by Associate Judge D.I. Gendall on 8 October 2007 that the plaintiff is to file within 20 working days of 8 October 2007 its quantum evidence and the defendant to file and serve within 40 working days of 8 October 2007 its quantum evidence and the further order that the plaintiff is to file and serve any affidavit evidence in reply within 50 working days of 8 October 2007."[3] The orders which the defendant seeks to vary were made at a call of this matter in the Chambers List on 8 October 2007. [4] This followed the hearing of a summary judgment application brought by the plaintiff against the defendant on 16 May 2007. In a reserved judgment I gave with respect to that summary judgment application on 5 July 2007, summary judgment as to liability only was granted to the plaintiff against the defendant with respect to the defendant's guarantee liability on certain loans outstanding to the plaintiff. [5] In that 5 July 2007 judgment, I directed that a quantum hearing was to be scheduled and as I understand it the Registrar has allocated 21 February 2008 at 10.00 am for the hearing of that quantum issue. [6] In so far as the present application by the defendant is concerned, as I understand the position, he contends that the plaintiff is in default of an order madein my 5 July 2007 judgment which he maintains required the defendant to provide further discovery to the plaintiff. [7] That 5 July 2007 judgment at paragraph 55 states:"55. As to the documents sought in para [1], [7], and [8] of this application (the defendant's discovery application filed 9 May 2007), as I understand the position from counsel for the plaintiff, the plaintiff has indicated it will provide these documents to the defendant. That is now to occur.[8] That paragraph 55 of my judgment followed a discussion at the hearing with Mr Toebes for the plaintiff and Mr Lamb for the defendant with respect to this discovery issue. The documents in question, as I understood it, according to Mr Toebes, were, to be provided in so far as they were relevant to the outstanding quantum issue still to be determined. [9] The defendant complains that almost none of the documents in question have been provided. [10] Mr Barker for the plaintiff responds by indicating that some of the documents (in particular those under paragraph [7]) are already with the defendant, Mr Nisbet, so far as advances from the plaintiff are concerned. Mr Barker went on to indicate that so far as certain of the other documents mentioned in paragraphs [1] and [8] of the application are concerned, these have no relevant to the quantum issue and further in so far as documents under paragraph [1] are concerned they do not in any event "pertain to the Dovey Place Developments Limited debt" and therefore effectively are not relevant here. [11] At present, the outstanding substantive matter before this Court is the quantum hearing scheduled for 21 February 2008 regarding the plaintiff's successful summary judgment application.[12] The present application from the defendants seeking a variation of the orders made on 8 October 2007 as to the filing of evidence for, and hearing of, the quantum issue in my view is misplaced. [13] That application is declined. [14] The orders made on 8 October 2007 for provision of the plaintiff's and defendant's evidence as to quantum are to remain. The hearing date scheduled for 21 February 2008 for the quantum matter similarly is to remain. [15] I emphasise that the application before me today was the defendant's application for orders seeking to vary or rescind those specific earlier directions which I made in this matter. [16] The consideration today was not one with respect to the defendant's original discovery application filed in this matter on 9 May 2007. If the defendant wishes to reactivate that discovery application to any extent then that is a matter for the defendant. [17] It may be that once the defendant has received the plaintiff's quantum evidence (which I understand is due to be provided by 6 November 2007) then the position concerning quantum questions may become clearer. At that point, the existing directions which I have confirmed requiring the defendant to provide its affidavit evidence by 4 December 2007 (that is within 40 working days of 8 October 2007) will be activated. [18] My original 5 July 2007 judgment at paragraph 57 reserved leave for any party on 3 days notice to approach the Court for further directions if those were required. [19] Without in any way inviting any further approaches or applications on the part of the defendant, once the plaintiff's quantum evidence is provided which will occur by 6 November 2007, then as I see the position, it is open to the defendant, ifhe is of the view that additional information or verification of the quantum figures is required, to bring an appropriate application at that point. [20] In summary then, as I have outlined above, the defendant's present application filed 12 October 2007 for orders varying or rescinding the earlier orders of this Court made on 8 October 2007 is dismissed. [21] Those orders are to remain and the quantum hearing date with respect to the summary judgment application is confirmed at 10.00 am, 21 February 2008. [22] Costs in the meantime are reserved. 'Associate Judge D.I. Gendall'