JOHNS V JOHNS AND HOLLOWAY AND ANOR HC AK CIV 2000-404-001501

JOHNS V JOHNS AND HOLLOWAY AND ANOR HC AK CIV 2000-404-001501

The court exercised its discretion to vary the unless orders because the plaintiff reached an accommodation securing legal aid, the variation application was made before the orders took effect, the non‑compliance was not shown to be deliberate, and on balance the interests of justice required an extension to 16...

Source-derived case information.

Citation
openlaw-fcc489a4_f2a1_49a6_b4cc_42b283ffb7f3.pdf
Parties
Plaintiff: S H C Johns; First Defendant: L R Johns and C C Holloway; Second Defendant: L R Johns
Court
High Court
Jurisdiction
New Zealand
Judgment Date
25 November 2005
Procedural Posture
Civil Breach of Trust and Breach of Fiduciary Duty / Application to Vary Unless Orders (pre Trial Case Management)
Outcome
Unless orders varied and time for compliance extended
Legal Topics
Breach of Trust, Breach of Fiduciary Duty, Unless Orders, Extension of Time, Setting Down, Costs
Trusts Fiduciary Duties Civil Procedure Legal Aid Breach of Trust Breach of Fiduciary Duty Unless Orders Extension of Time +2 more

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Parties

S H C Johns

Plaintiff

L R Johns and C C Holloway

First Defendant

L R Johns

Second Defendant

Procedural Posture

Civil Breach of Trust and Breach of Fiduciary Duty / Application to Vary Unless Orders (pre Trial Case Management)

Legal Issues

  1. 1 Whether the court should vary unless orders and extend time for compliance
  2. 2 Whether the plaintiff's failure to comply was excused by matters beyond his control (legal aid dispute)
  3. 3 Whether prejudice to defendants and the administration of justice requires dismissal

Ratio Decidendi

The court exercised its discretion to vary the unless orders because the plaintiff reached an accommodation securing legal aid, the variation application was made before the orders took effect, the non‑compliance was not shown to be deliberate, and on balance the interests of justice required an extension to 16 December 2005 subject to strict consequences for further non‑compliance.

Court Disposition

Unless orders varied and time for compliance extended

Orders

  • Time for plaintiff to pay setting down fee extended to 16 December 2005
  • Time for plaintiff to file and exchange his own witness statement extended to 16 December 2005 (does not apply to expert witness statements)