NORMAN GLASS SERVICES LTD v NORMAN [2018] NZHC 2043

NORMAN GLASS SERVICES LTD v NORMAN [2018] NZHC 2043 [10 August 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV 2017-404-611[2018] NZHC 2043BETWEEN NORMAN GLASS SERVICES LIMITEDPlaintiffAND MARK NORMANDefendantHearing: 7 August 2018Appearances: M A H Macfarlane and H W Y Yiu for PlaintiffD J G Cox for DefendantJudgment: 10 August 2018JUDGMENT OF PETERS JThis judgment was delivered by Justice Peters on 10 August 2018 at 12 pmpursuant to r 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate: ...................................Solicitors: Hesketh Henry, AucklandRobert Burnes & Associates, AucklandRennie Cox, AucklandIntroduction[1] The trial of this proceeding commences on 13 August 2018.[2] The issue in the proceeding is whether the plaintiff, Norman Glass ServicesLimited ("NGSL"), has an option to purchase or a right of first refusal on premiseswhich it leased from the owner, the defendant, Mr Norman. Mr Norman has enteredinto an agreement for sale and purchase of those premises to a third party.[3] By application dated 30 July 2018, the plaintiff sought orders:(a) in respect of the evidence of Ian Milton MacLaren; and(b) for leave to continue acting as counsel.[4] The application was opposed.[5] The application for leave to continue acting as counsel has been resolved. Itwas made because the defendant wishes to adduce evidence from a solicitor at HeskethHenry. Regardless, the defendant has no objection to Hesketh Henry continuing to actin the proceeding. Given that, by consent, I grant leave to Hesketh Henry to continueacting as counsel in accordance with its application.Mr MacLaren[6] Mr MacLaren was a clerical assistant to Mr Metge, the principal of NGSL, andhis evidence is expected to be of some relevance at trial. In the usual course of events,Mr MacLaren would have to appear and be available for cross-examination but hisstate of health rules that out.[7] The orders that NGSL seeks in respect of Mr MacLaren's evidence are asfollows:(a) That [Mr MacLaren], witness for [NGSL], be exempt from having togive evidence in person at the upcoming trial of this matter scheduledto commence on 13 August 2018;(b) That the prior evidence of [Mr MacLaren], being his affidavit swornon 23 March 2017 and his earlier evidence, including cross-examination, as detailed in the transcript for proceeding CIV-2017-404-000379 before her Honour Justice Gordon, be read as hisevidence for the upcoming trial.[8] The defendant opposes the making of these orders on the grounds thatMr MacLaren is an important witness and because he contends that NGSL has delayedseeking these orders, making it difficult, if not impossible, to take Mr MacLaren'sevidence in another way.[9] I do not have jurisdiction to exempt Mr MacLaren from giving evidence, beingthe first order sought. However, when I discussed this matter with counsel for NGSL,Ms Macfarlane, she advised that she sought to have Mr MacLaren's evidence admittedas a hearsay statement pursuant to s 18(1) Evidence Act 2006 ("Act") which provides:18 General admissibility of hearsay(1) A hearsay statement is admissible in any proceeding if—(a) the circumstances relating to the statement provide reasonableassurance that the statement is reliable; and(b) either—(i) the maker of the statement is unavailable as a witness;or(ii) the Judge considers that undue expense or delaywould be caused if the maker of the statement wererequired to be a witness.[10] The hearsay statements that NGSL wishes to adduce are an affidavit thatMr MacLaren swore on 23 March 2017 in CIV-2017-404-379 ("CIV-379"), and thenotes of evidence of his cross-examination on the same. CIV 379 was a proceedingbefore Gordon J, in which the defendant sought, unsuccessfully, to remove a caveatNGSL had lodged against the title to the premises in dispute.1[11] I am satisfied that Mr MacLaren is unavailable as a witness within the meaningof s 16(2) of the Act, so s 18(1)(b)(i) is satisfied. I accept that it would have been1 Norman v Norman Glass Services Ltd [2017] NZHC 1597.preferable for NGSL to notify Mr MacLaren's position earlier but I am not persuadedit affects the course that I should take.[12] I am also satisfied that s 18(1)(a) is satisfied because the hearsay statementswere made on oath.[13] The real issue is whether there is any unfairness to the defendant by what isproposed, as to which the following matters seem to be of consequence.[14] Mr MacLaren's evidence is expected to be relevant at trial because hehandwrote two letters that will feature. The gist of Mr MacLaren's evidence is thatfrom time to time Mr Metge would dictate letters to Mr MacLaren whichMr MacLaren would then write out. The two letters to which I have referred were inthat category, or so Mr MacLaren says.[15] As to the first letter, Mr MacLaren's evidence is that, having handwritten theletter as instructed, he went into Mr Metge's office and read it out loud to him and thatMr Norman was present at the time. Mr Norman denies that this ever occurred.[16] There is no issue, now at least, that the two letters are in Mr MacLaren'shandwriting and that NGSL was in possession of the originals when the disputebetween the parties arose. The issue is whether Mr Norman was present on theoccasion to which Mr MacLaren referred. Mr Cox, counsel for Mr Norman, cross-examined Mr MacLaren on this issue before Gordon J and he remained adamant thatMr Norman was there.[17] When I discussed this matter with counsel on 6 August 2018, Mr Cox couldnot identify any new question that he wished to put to Mr MacLaren. It may be,however, that something arises during the trial which should be put to Mr MacLaren.If that were to occur, I would be willing to consider how Mr MacLaren's evidencemight be obtained on the point. That is a matter I shall address if it becomes necessary.[18] In the meantime, Mr MacLaren's affidavit and the notes of his crossexamination/re-examination are admissible. The weight to be given to the evidencewill be a matter for submission.Peters J