MALL SUPPLIES & SERVICES LIMITED V ALFONSO LIGUORI HC AK CIV-2007-404-005204

MALL SUPPLIES & SERVICES LIMITED V ALFONSO LIGUORI HC AK CIV-2007-404-005204 12 October 2009IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2007-404-005204BETWEEN MALL SUPPLIES & SERVICES LIMITED Plaintiff AND ALFONSO LIGUORI Defendant Hearing: 12 October 2009 Appearances: C T Patterson and Z Hill for Appellant R Thompson for Respondent Judgment: 12 October 2009ORAL JUDGMENT OF VENNING J ON ADJOURNMENT APPLICATIONSolicitors: Lovegroves Lawyers, Auckland ASCO Lawyers, Auckland Copy to: C T Patterson, Auckland R Thompson, Auckland A Liguori, Auckland[1] These proceedings were issued on 24 August 2007. The plaintiff claims against the defendant for moneys owed by the defendant to the plaintiff. The claim is based on a written compromise of an earlier claim. The defence advanced in the pleadings is a claim based on an oral variation of that agreement. [2] The proceedings were allocated a fixture for today as long ago as 30 May 2008. The defendant has been represented throughout until recently. Last week his solicitors and counsel were granted leave to withdraw. In granting leave to withdraw Harrison J noted at para [6]:I emphasise that Mr Liguori, who knows of Blackwell's application, is not to use his failure to meet his contractual obligations to his solicitors and counsel as a ground for seeking an adjournment of a fixture due to commence on 12 October 2009.[3] This morning Mr Thompson has appeared at short notice on instructions from a fresh firm of solicitors that Mr Liguori has been to see. Mr Thompson has sought an adjournment of the fixture. There are two grounds advanced in support of the adjournment. The first is that Mr Liguori wishes to instruct a new firm of solicitors to act for him and counsel wishes to make an application for legal aid to enable him to do so. [4] The second matter is related. Mr Thompson submits that Mr Liguori's medical condition is such that he cannot conduct the hearing properly. He is not able to represent himself. [5] The adjournment is opposed by the plaintiff. Mr Patterson points out that neither of the matters advanced are particularly new. The Court has previously been told that Mr Liguori has failed to pay his former solicitors and counsel since May last year and nor is the medical position of Mr Liguori anything new. There is a letter before the Court from his doctor. It was attached to the affidavit of counsel seeking leave to withdraw. It is dated 5 October 2009 and confirms that Mr Liguori has been under care of that doctor since 2001. Mr Liguori suffers from essential hypertension, irritable bowel syndrome, prolapsed lumbar, intervertebral disc, andgeneralised anxiety disorder. The conditions are manageable and treated. The letter described Mr Liguori as being in good health, but since November 2008 suffering from a relapse of anxiety disorder. He has difficulty sleeping. He has been experiencing forgetfulness and has difficulty concentrating on complex mental tasks. In the doctor's opinion his symptoms are intense and he is not fit to give a reliable account of himself and his affairs. [6] As noted this fixture has been allocated since May 2008. It has obviously been known to Mr Liguori since at least May 2008 that his financial position was not such that he could afford counsel and solicitors without legal aid. He has had ample time to make application for legal aid and has failed to do so before now. [7] In relation to his medical position I appreciate that Mr Liguori's position is that he may find it difficult to cope with the proceedings he faces. So do a number of people. Balanced against Mr Liguori's position there are the interests of the plaintiff to be considered and also the interests of justice overall. These proceedings have been on foot since August 2007. It is now October 2009. They are straightforward proceedings for the recovery of a debt incurred many years ago. [8] Mr Liguori's medical condition can be treated. He could and should have sought treatment and medication to ensure he was in a position to proceed today if necessary. I am not prepared to adjourn this fixture. The application for adjournment is declined. The fixture will proceed. [9] Mr Thompson is granted leave to withdraw. __________________________ Venning J