VIGOR-BROWN v THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2015] NZHC 582

VIGOR-BROWN v THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED [2015] NZHC 582 [26 March 2015]IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCIV-2014-463-15[2015] NZHC 582UNDER the Trustee Act 1956, Trustee CompaniesAct 1967 and New Zealand GuardianTrust Company Act 1982BETWEEN NICHOLAS JOHN VIGOR-BROWN,WILLIAM VIGOR-BROWN andTHOMAS CHARLES VIGOR-BROWNPlaintiffsAND THE NEW ZEALAND GUARDIANTRUST COMPANY LIMITEDDefendantHearing: 26 March 2015Appearances: K A Badcock for the PlaintiffsJ Temm for the DefendantJudgment: 26 March 2015JUDGMENT OF ELLIS JThis judgment was delivered by me on 26 March 2015 at 4.15 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate:.Counsel/Solicitors:K A Badcock, Barrister, RotoruaJ Temm, Barrister, Rotorua[1] The defendant, New Zealand Guardian Trust Company Limited (Guardian Trust) says that these proceedings have been filed in the wrong registry and seeks to have them transferred to the High Court at Auckland pursuant to r 5.1(4) of the High Court Rules.Background[2] The plaintiffs are the residuary beneficiaries of the estate of Barbara Vigor- Brown, their great-aunt. They reside in Tauranga, London and Perth respectively.[3] Guardian Trust is the administrator, executor and trustee of the estate. The principal asset of the estate was a leasehold property situated at 28 George Street, Hospital Hill, Napier. That property was sold by the Guardian Trust in January 2008.[4] On 6 January 2014, the plaintiffs filed a statement of claim in the Rotorua registry. The claim concerns various alleged breaches of trust by Guardian Trust in relation to the administration of their great-aunt's estate, a number of which relate to the sale of the George St property (which occurred on 18 January 2008) and its aftermath.1[5] Following service of the proceedings on Guardian Trust on 7 January 2014, the parties through their solicitors agreed to defer the date for filing a statement of defence to enable settlement negotiations to take place. Those negotiations were, however, unsuccessful. The parties are agreed that the matter should proceed to trial.[6] Guardian Trust's statement of defence was filed contemporaneously with thepresent application for transfer.The "proper registry" rules[7] Rule 5.25 of the High Court Rules provides that a proceeding must be commenced by filing a statement of claim in the proper registry of the court. Rule1 The statement of claim also pleads negligence.5.1(a) provides that when a sole defendant is resident or has a principal place of business in New Zealand, the "proper registry of the court" is - the registry of the court nearest to the residence or principal place of business of the defendant [8] On the date the proceedings were filed, Guardian Trust's principal place ofbusiness was located at Level 7, Vero Centre, 48 Shortland Street, Auckland. Although that exact address has since changed, it remains in Auckland.[9] An exception to that general rule is contained in r 5.1(2), as follows:Despite subclause (1)(a), if the place where the cause of action sued on, or some material part of it, arose is nearer to the place where the plaintiff or the plaintiff first-named in the statement of claim resides than to the place where the defendant resides, the proper registry of the court for the purposes of subclause (1) is, at the option of the plaintiff or the plaintiff first-named, as the case may be, the registry nearest to the residence of the plaintiff or the plaintiff first-named, as the case may be.[10] Rule 5.1(3) stipulates that if a plaintiff seeks to exercise the option conferred on him by r 5.1(2), he must file together with the statement of claim and notice of proceeding an affidavit explaining that the place where the cause of action, or a material part of it, arose and that that is nearer to the place where the plaintiff (or first-named plaintiff) resides than to the place where the defendant resides.[11] Also potentially relevant is r 5.1(5), which provides that:If it appears to a Judge, on application made, that a different registry of the court would be more convenient to the parties, he or she may direct that the statement of claim or all documents be transferred to that registry and that registry becomes the proper registry.The basis for the transfer application[12] In the present case, no affidavit accompanied the statement of claim at the time of filing. Rather, it was not until the present application for transfer had been made that an affidavit sworn by Nicholas Vigor-Brown (Nicholas) was filed and served addressing the matters required by r 5.1(3).[13] In this affidavit, Nicholas deposes that he and his father, Robert Vigor-Brown (Robert), attended a meeting with representatives of Guardian Trust at Robert'soffices in Rotorua on 24 December 2007. Robert is a solicitor and was acting on behalf of the plaintiffs in their dealings with Guardian Trust.[14] Nicholas says that at the meeting, Guardian Trust agreed not to sell the George Street property "without reference" to himself and Robert. Guardian Trust'sdecision to sell the property to Judy Siers on 18 January 2008 is said to be in breach of that purported agreement and accordingly, the plaintiffs say, a material part of the cause of action (the making of the agreement) arose at Rotorua.[15] Guardian Trust disputes that it entered into any such agreement and does not in any event accept that making the (purported) agreement in Rotorua is a material part of any of the causes of action. It has also filed evidence averring that day to day administration of the estate was managed out of the Napier branch office and that the decision to sell the property was made by the Company Secretary out of GuardianTrust's head office in Auckland. It says that there is therefore no proper basis for filing the proceedings in Rotorua.[16] Guardian Trust also takes issue with the plaintiffs' position on the basis that:(a) Nicholas' affidavit was not filed at the same time as the statement of claim and notice of proceeding as required by r 5.1(3); and(b) It is the Tauranga registry, not Rotorua, that is in any event the registry nearest to Nicholas' residence (which is in Tauranga).Discussion[17] I am prepared to proceed on the basis that the late filing of Nicholas' affidavitshould be excused.2 But it seems to me that the fact that Nicholas lives in Tauranga rather than Rotorua is immediately problematic.2 Non-filing of the requisite affidavit until the choice of registry is challenged may be excused but such non-compliance should be avoided: BCNZ v Diet Tea Co Ltd [1986] 2 NZLR 690 (CA).[18] That is because the exception contained in r 5.1(2) only contemplates alternative filing in "the registry nearest to the residence of the plaintiff or the plaintiff first-named, as the case may be", which would be Tauranga.3 Mr Badcock agreed with this conclusion.[19] To the extent that the plaintiffs wish to keep the proceeding in the Rotorua registry it therefore seems to me that the argument must be based on convenience4. That rule 5.1(5) would permit the Court to entertain an application made by the plaintiffs on that basis is made clear in Edgbaston Investments Ltd v Bank of New Zealand.5 Determining the matter on that basis also seems to me to be consistent with the r 1.2 objective of securing the just, speedy, and inexpensive resolution of the proceedings.[20] In terms of the material that is presently before the Court it seems to me that the following matters are relevant to a convenience inquiry:(a) Nicholas lives nearer to Rotorua than Auckland;(b) the defendant resides in Auckland;(c) the plaintiffs' legal advisers are in Rotorua;(d) the defendant's legal advisers are in Auckland;(e) some of the likely witnesses (Nicholas and Robert) live in, or near, Rotorua;(f) the other potential witnesses live either in Auckland and/or Napier;[21] It also seems relevant that it is particularly desirable in the present case to facilitate speedy resolution of this matter. I say that because:3 Although not altogether happily expressed, I consider that both r 5.1(2) and (3) are predicated on the assumption that the plaintiff has filed the proceeding in the registry nearest to where he lives.4 Presumably based on the fact that Robert (the plaintiffs' father and solicitor) lives there.5 See the discussion in Edgbaston Investments Ltd v Bank of New Zealand [1994] 1 NZLR 634 at 638-639 (HC).(a) despite being filed over a year ago, the proceeding has not (albeit for perfectly acceptable reasons) progressed at all; and(b) the claim itself relates to matters which occurred some time ago (in 2007 and early 2008). The limitation period in relation to at least some of the causes of action expired only a matter of days after the claim was filed.[22] Lastly I mention that counsel are generally agreed that the trial seems likely (at this point) to take between three and four days. My own inquiries of the respective registries indicate that a civil fixture of that length (were it to be allocated today) could take place in Auckland between September and November this year, whereas in Rotorua there is only the possibility of such a fixture being available in December (no Judge presently being assigned or available then). That position is entirely consistent with what one might expect, namely that there is considerably less High Court time available over any given year in Rotorua than in Auckland.[23] In all the circumstances of this case I consider that convenience and the objectives in r 1.2 does favour transfer of the proceedings to Auckland. I make that order accordingly.[24] Counsel were agreed that the important next step is to schedule the first case management conference and I direct that the Registrar at Auckland is to allocate a date as soon as possible for that to occur.[25] I can see no reason why the defendant should not receive costs on its transfer application and I order that on a 2B basis. I trust they can be agreed between the parties.____________________Rebecca Ellis J