NEW ZEALAND TRADE CENTRE LIMITED v LIANHUA TRADING GROUP LIMITED [2015] NZHC 3014

NEW ZEALAND TRADE CENTRE LIMITED v LIANHUA TRADING GROUP LIMITED [2015] NZHC3014 [1 December 2015]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV 2015-404-002726[2015] NZHC 3014BETWEEN NEW ZEALAND TRADE CENTRELIMITEDPlaintiffAND LIANHUA TRADING GROUP LIMITEDDefendantHearing: 27 November 2015Appearances: JEM Lethbridge/CJL Wei for the PlaintiffJWA Johnson for the DefendantJudgment: 1 December 2015JUDGMENT OF ASSOCIATE JUDGE CHRISTIANSENThis judgment was delivered by me on01.12.15 at 12:30pm, pursuant toRule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] On 25 November 2015 the defendant filed applications for orders stayingproceedings and restraining advertising. The matter was called before me on 27November 2015. The plaintiff applied to dismiss the defendant's applications ongrounds that no supporting affidavit was filed by the defendant.[2] Ms Lethbridge for the plaintiff submits High Court Rule 7.20 requires anaffidavit in support being filed at the same time as the application.[3] Whilst the defendant's application had been filed and served on 25 November2015, by when it had to be filed, (HCR 31.11(1)), no affidavit was then filed or served.[4] Ms Lethbridge submits the defendant's applications should be struck out.[5] The Court disagrees. The Court has power under the HCRs to allow theapplication to be heard notwithstanding the non compliance with HCR 7.20. TheCourt retains a discretion under HCR 1.19 to extend the time for the filing of asupporting affidavit and therefore allowing the application to proceed. A formalapplication under r 1.19 is not required and nor is the requirement for a r 1.19application to be filed within the r 31.11 five day timeframe.[6] For this case an unwitnessed affidavit was served on the plaintiff on 26November 2015 at 12:11pm. A properly witnessed affidavit was then filedelectronically and served on the parties on 27 November 2015 at 8:41am. A physicalcopy of the properly witnessed affidavit was filed with the Court during the 27November 2015 mention at 11:45am before me.[7] As HCR 1.19 contemplates there will be circumstances where parties do notintend to miss deadlines and/or when the need for extensions is not always foreseeable.The defendant is owned by a registered Chinese corporation. Apparently a witnessingirregularity in China contributed to delays in filing the affidavit within the timeframe.Regardless, an unsigned copy was served and the following day the signed affidavitwas filed and served.[8] It does not appear there was any intended breach of HCR 7.20.[9] It seems to the Court no element of injustice was caused by the two day delay.Ms Lethbridge submitted the defendant's affidavit was five pages long only andcontained bold assertions including that the defendant company is not insolvent yet,no objective evidence was provided by which such claims could be tested.[10] Ms Lethbridge requests an urgent hearing be scheduled this year.[11] In the Court's view it should not be tempted to draw any conclusions at thistime regarding the merits of the defendant's applications. Nor does the Court considerthere is any urgency needed.Conclusions[12] The plaintiff's application to strike out due to non compliance with HCR 7.20is dismissed. The Court exercises its discretion to allow the defendant's affidavit tobe filed when it was.[13] The Registry is to consult with counsel regarding their availability for thepurpose of scheduling a half day hearing in the new year.[14] The defendant is required to file and serve submissions, a paginated andindexed casebook of relevant pleadings, and bundle of authorities no later than10 working days prior to the hearing.[15] The plaintiff's submissions and bundle of authorities are to be filed and servedno later five working days prior to the hearing.[16] The Court makes interim orders for stay and to prevent advertising pendingfurther order of the Court.Associate Judge Christiansen