SAYES V SAYES HC AK CIV-2009-404-005931

SAYES V SAYES HC AK CIV-2009-404-005931 [16 August 2012]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2009-404-005931[2012] NZHC 2091BETWEEN MAURINE DOROTHY SAYESPlaintiffAND SHELLEY ANN SAYES AND SAYESFAMILY TRUSTEE COMPANYLIMITEDFirst DefendantsAND MICHAEL WENTWORTH SAYESSecond DefendantHearing: 16 August 2012Counsel: H Sumich for PlaintiffCR Eric for First DefendantsNo appearance for Second DefendantJudgment: 16 August 2012JUDGMENT OF ASHER J(on examination of witness)Solicitors/Counsel:H Sumich, PO Box 3799, Shortland Street, Auckland 1140. Email: Helen.sumich@advocacy.co.nzGlaister Ennor, PO Box 63, Shortland Street, Auckland 1140. Email: caroline.eric@glaisterennor.co.nzCopy to:M Sayes, 106 Holdens Road, Clevedon, RD5, Papakura, Auckland 2585. Email: michaelsayes@gmail.com[1] These Property (Relationship) Act 1976 proceedings are set down for hearingfor one week on 27 August 2012. The plaintiff applies for an order that a witness,Warren Geoffrey Priest, be examined prior to trial and for the abridgement of time.[2] I note Mr Sayes did not appear today. However, he has sent an email to theCourt advising that he is happy to have the matter determined on the papers by theDuty Judge after considering his notice of objection.[3] Mr Priest is a valuer and has valued relevant properties at various times. Heis the only expert valuer who has filed an affidavit and who is to be called. It wasnot anticipated that he would be called by counsel for the plaintiff. I note that underr 9.74 of the High Court Rules a person is only to be cross-examined on an affidavitif notice is given of a wish to cross-examine. Notice can be given up to no less thanthree working days before the commencement of the trial.[4] It was assumed by the plaintiff that Mr Priest was not required for cross-examination. This was because:(a) there had been no indication that he would be cross-examined; and(b) there had been no contrary valuation evidence filed by Mr Sayes, thesecond defendant. The first defendant trustees are abiding thedecision of the Court.[5] At a pre-trial conference on Wednesday 8 August 2012, Mr Sayes gave an indication that he would wish to cross-examine Mr Priest. When counsel checkedwith Mr Priest it turned out that he already had arranged an overseas trip betweenSaturday 25 August and Saturday 1 September 2012. Mr Priest is recovering fromhip surgery and the break has been long planned and of considerable importance tohim.[6] Although it would have been prudent for Mr Priest to have cross-checked histravel arrangements with the plaintiff's lawyers, given the circumstances that I haveoutlined I consider it understandable that arrangements were made for this overseastrip. I also accept that it would be a very harsh outcome to require him to be present, and the prospect of vacating the fixture is one that would be viewed with the utmost concern by the plaintiff. These proceedings have been extant since 2009.[7] I note the nature of Mr Priest's evidence. He is an expert. His evidence willbe relatively self-contained. It would not be expected to be cross-dependent on othercontested evidence that will be given during the trial.[8] Mr Sayes has set out clearly his reasons for opposition, but I do not discern inthose reasons any factor which will lead to an injustice if Mr Priest gives hisevidence early.Result[9] I therefore order that the evidence of Warren Geoffrey Priest is to be taken byway of examination on oath before a Judge, Registrar or Deputy Registrar, or beforea person that the Court appoints. The time for the hearing of the application isabridged by 24 hours.[10] The Registrar is to allocate a date and time for the hearing of Mr Priest'sevidence and notify the parties of that date and time. It would be prudent to allowtwo hours.[11] As a practical way forward I would then suggest Ms Sumich obtain a datethis morning from the Court if possible, and then communicate by email withMr Sayes advising him of the date and checking his availability. Obviously effortsshould be made to accommodate his convenience, as well as that of Mr Priest.[12] If there are any difficulties the plaintiff may convene a telephone conferenceon three hours' notice...Asher J