RUDYARD HOLDINGS LTD v KIWIBANK LTD [2014] NZHC 129

RUDYARD HOLDINGS LTD v KIWIBANK LTD [2014] NZHC 129 [12 February 2014]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2012-404-003684[2014] NZHC 129BETWEEN RUDYARD HOLDINGS LIMITEDPlaintiffAND KIWIBANK LIMITEDDefendantHearing: 12 February 2014 (by telephone)Counsel: P J Dale for PlaintiffS A Barker, P Niven and M J Bell for DefendantJudgment: 12 February 2014JUDGMENT OF VENNING JOn application for adjournmentThis judgment was delivered by me on 12 February 2014 at 2.15 pm, pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateSolicitors: Neilsons Lawyers Limited, AucklandBuddle Findlay, AucklandCopy to: P J Dale, Auckland[1] The Registrar has referred this file to me as Executive Judge. The proceeding has a fixture scheduled to commence on 17 March 2014 (eight days allocated). The plaintiff seeks to adjourn the fixture. The application for adjournment is opposed by the defendant. The application for adjournment is pursued on the basis that on 31 January 2014 the defendant filed a counterclaim. The plaintiff considers it will not be able to respond to the counterclaim in the time available before trial. The application for adjournment is supported by an affidavit of Mr Halse, a director of the plaintiff and Ms Gardien, a legal trust accountant.[2] In the proceeding the plaintiff sues the Bank for damages arising out of theBank's refusal to continue to fund a property development contrary, it is said, to an agreement reached by the parties and representations made by the Bank. The plaintiff also seeks to recover losses arising out of mortgagee sale conducted by theBank. The Bank's counterclaim is for the balance of moneys it says is due andowing pursuant to the facilities advanced by it and guaranteed by the plaintiff.[3] In support of the application for adjournment Mr Dale referred to the affidavits of Mr Halse and Ms Gardien noting that Mr Barker had initially indicated he would recommend his client agree to an adjournment.1 Mr Dale submitted that although the plaintiff could have its witness statements ready within time he was of the view, based on his current instructions, the plaintiff would not be able to respond to the counterclaim in time for the fixture on 17 March 2014.[4] As noted, the defendant Bank opposes any adjournment. It considers theplaintiff's claim is unmeritorious and makes the point that the counterclaim for moneys owing by the Bank is of the nature of a counterclaim regularly raised in summary judgment proceedings.[5] In preparation for the hearing which was conducted by telephone conference I reviewed the file. I have also considered the affidavits of Mr Halse and Ms Gardien. I am satisfied that there is time for the plaintiff to respond to the counterclaim raised by the Bank. While the counterclaim may have only been filed on 31 January 2014, in a claim against a Bank arising out of a banker/customer1 That was on 3 February, but on 4 February Mr Barker confirmed the Bank wished to proceed.relationship it can hardly be surprising that the Bank would seek to recover by way of counterclaim moneys which it says are due and owing as a consequence of that relationship. The underlying loan documents are readily identifiable and available. The difficulty that arises in the present case is as a consequence of the number of entities with cross-guarantees and the transactions involving those cross-entities and credits arising from repayments. However, that is a matter of reconciliation of accounts – largely an accounting exercise. Ms Gardien says she will need five working days to address the issues at least. That can be provided on the timetable I propose to fix so that time will be available to her.[6] Mr Dale also raised the issue of documents relating to the counterclaim not being available to the plaintiff. Mr Barker countered by noting that Bank statementshave been sent to Mr Halse's firm's PO box. Further documents have been discovered and sent to Mr Dale. He considers that the Bank has made full discovery.[7] Despite the matters raised by Mr Dale (including the background to the proceeding) I am satisfied that it is in the interests of justice that the trial date be maintained. The case has been before the Court since 2012. As noted the counterclaim can hardly have been entirely unexpected. The plaintiff was due to exchange its witness statements by 31 January 2014. Time can be provided for theplaintiff to respond to the defendant's counterclaim.[8] The application for adjournment is declined.Directions[9] The plaintiff is to file and serve an amended statement of claim and a defenceto the defendant's counterclaim by 19 February 2014.[10] The date for the plaintiff to exchange its witness statements in support of its claim against the defendant is extended to 19 February 2014.[11] The defendant is to exchange witness statements in support of its counterclaim by 19 February 2014.[12] Defendant to file and serve a statement of defence to the amended claim by 28 February 2014.[13] Witness statements in reply by the plaintiff to the defendant's counterclaimby 10 March 2014.[14] Witness statements in reply by the defendant to the plaintiff's claim by 10March 2014.[15] Plaintiff to file and serve common bundle by 13 March 2014.[16] Plaintiff to file and serve opening by 13 March 2014.[17] I note that during the course of the conference Mr Barker indicated an application would be made for the evidence of one of the Bank's witnesses to betaken by video link. Mr Dale indicated that would be opposed. The Registrar is to note the application will have to be dealt with in advance of trial.[18] Leave reserved to either party to apply further.Costs[19] The defendant has successfully opposed the application for adjournment. Costs to the defendant on a 2B basis on the application for adjournment and conference call.__________________________ Venning J