OLD MONEY FAMILY TRUST LIMITED V GLOBAL INVESTMENT TRUST LIMITED HC AK CIV-2005-404-2900

OLD MONEY FAMILY TRUST LIMITED V GLOBAL INVESTMENT TRUST LIMITED HC AK CIV-2005- 404-2900 21 December 2005IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2005-404-2900BETWEEN OLD MONEY FAMILY TRUST LIMITED Plaintiff AND GLOBAL INVESTMENT TRUST LIMITED Defendant Hearing: 21 December 2005 Appearances: R O Parmenter for plaintiff C Walker for defendant Judgment: 21 December 2005(ORAL) DECISION OF ASSOCIATE JUDGE DOOGUE [Admissibility of affidavit of Gary Roy McLoughlin sworn 21 October 2005]Solicitors: Ruby Law, P O Box 11061, Hamilton Fax: (07) 858-3351- R O Parmenter Gilbert Walker, P O Box 1595, Auckland Fax: (09) 374-1111 – C Walker[1] I have this morning been dealing with an application to place a company into liquidation brought by Old Money Family Trust Limited. [2] Quite a number of affidavits have been filed. They commence with a very general affidavit from a Mr Hoffman who is the person with an interest in and probably the controlling personality of the plaintiff. His affidavit was answered by affidavits for the defendant given by Messrs Mitchell, Penny and Currie. The affidavit of Mr Penny dated 6 July 2005 was expressed to be in support of the defendant's application for extension of time to file statements of defence. No application was made for it to be read at this proceeding but Mr Parmenter, as I will expect, has not made anything of that point. [3] A further two affidavits were filed by the plaintiffs after the sequence of defendant's affidavits. Those were affidavits by a Mr Kent 12 October 2005 and Mr McLoughlin's affidavit 21 October 2005, the last being filed on the 27 October 2005. [4] I am afraid to say that there has been very poor compliance with the rules in this case concerning the filing of and contents of the affidavits. A great deal of the fault resides with the plaintiff for whom Mr Parmenter has only been briefed in the last day or two. The McLoughlin affidavit is the first document in which there appears any detail showing how the amount claimed by the plaintiff can be verified. But as I have said although the McLoughlin affidavit is not expressly termed such, it is an affidavit in reply and not one of the commencing affidavits. Mr Parmenter has sought to defend the fact that the affidavit of Mr McLoughlin has come in at such a late stage on the basis that the generalised opening affidavit by Mr Hoffman was the subject of some reasonably detailed refutation in the affidavits by Mitchell, Penny and Currie and that only once those affidavits had been seen was it appreciated what the matters in issue are going to be. [5] In my view it is a matter of looking at the substance of the affidavits. In this case, the opening affidavits by the plaintiff were woefully inadequate. That is the cause of the problem. That does not excuse the plaintiffs for bringing material at alate stage which in my view contravenes the requirements of Rule 510 because they are not strictly confined to matters in reply. [6] Mr Walker for the defendant has sought to exclude the affidavit of Mr McLoughlin. He has made an oral application to that effect this morning. Essentially he relies upon the contents of the affidavit as justifying an application for its exclusion. He says that Mr McLoughlin's affidavit offends Rule 501 because it contains inadmissible evidence. That evidence, he says, is to be found in the sections of the affidavit where Mr McLoughlin refers to what he has been told by Mr Hoffman. Examples, Mr Walker said, are to be found in paragraphs 46, 48 and others of the McLoughlin affidavit. For example, in paragraph 48 having referred to a payment of $10,000 Mr McLoughlin says "I am advised by Mr Hoffman this $10,000 amount is the payment referred to in exhibit note GRM9". He also criticises the affidavit on the basis that Mr McLoughlin, who is, and qualifies himself as, an expert, then sets about not only giving opinion evidence but providing the primary factual material or purporting to do so upon which he bases his opinion. He refers to the fact that Mr McLoughlin adduces documents the provenance of which are not properly established and then proceeds to give his view as to the resulting state of accounts between the plaintiff and the defendant based upon that inadequately proved material. [7] My conclusion is that the affidavit by Mr McLoughlin does offend against the rules so far as it contains inadmissible evidence. It does not necessarily follow, though, that an order should be made that the affidavit not be read. I suppose that if all of the material in an affidavit is contaminated in the ways I have just described then there would be no point in retaining it on the file. I do not consider that is the case here. I am able to pick my way through the affidavit and exclude where necessary parts of the affidavit which should never have been included because they represent unmistakable breaches of the rules. [8] Mr Walker did not seek to have the affidavit excluded on the basis that it went beyond being an affidavit in reply, and so I will not consider that ground. In my view the affidavit should not be removed from the file. I will read it but will give no weight to the inadmissible parts of it.____________________ J Doogue AP