SENIOR TRUST CAPITAL LIMITED v HOLMES [2023] NZHC 3001

SENIOR TRUST CAPITAL LIMITED v HOLMES [2023] NZHC 3001 [26 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2023-404-952[2023] NZHC 3001BETWEEN SENIOR TRUST CAPITAL LIMITEDPlaintiffAND CHRISTOPHER ALAN HOLMESFirst DefendantANTHONY CHARLESRUSSELL HANNONSecond DefendantCIV-2023-404-1141UNDER the Insolvency Act 2006IN THE MATTER of the bankruptcy of CATHERINEPHYLLIS HANNONBETWEEN SENIOR TRUST CAPITAL LIMITEDJudgment CreditorAND CATHERINE PHYLLIS HANNONJudgment Debtor continued.Hearing: 10 October 2023Appearances: M J Tingey & A L Harlowe for PlaintiffD A C Bullock & A W McDonald for First & Second DefendantsJudgment: 26 October 2023JUDGMENT OF ASSOCIATE JUDGE LESTER(leave to counsel to withdraw)This judgment was delivered by me on 26 October 2023 at 4.30pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarCIV-2022-404-2442BETWEEN CATHERINE PHYLLIS HANNONFirst PlaintiffCATHERINE PHYLLIS HANNON andTOMPKINS WAKE TRUSTEES2019 LIMITEDSecond PlaintiffsAND SENIOR TRUST CAPITAL LIMITEDDefendant[1] Senior Trust Capital Limited's (Senior Trust) application for summaryjudgment against the defendants was heard on 10 October 2023. Mr Bullock andMr Adam McDonald appeared for the defendants. Mr Tingey and Mr Morrisonappeared for the plaintiff.[2] An evidentiary issue arose which led to me issuing a Ruling on admissibilityon 12 October 2023. In respect of the major area of disputed admissibility (thereference to without prejudice material), I advised counsel during the 10 October 2023hearing that I would have regard to that material. Given the affidavit giving rise to theevidentiary dispute had only been filed one working day before the hearing, I saidMr Bullock would have a right of reply in relation to the points Mr Tingey said arosefrom the without prejudice material which appeared to contradict the evidence of thedefendants. Mr Bullock was to have 10 working days to respond, but I requested heuse his best endeavours to comply within five working days, given I wished to havethe judgment completed promptly.[3] Taking into account Labour Day, 10 working days from the hearing expired on25 October 2023.[4] On 20 October 2023, Mr Bullock filed an application to withdraw as solicitoron the record.[5] As required by Rule 5.41(4) of the High Court Rules 2016, an affidavit insupport of the interlocutory application to withdraw was filed. Mr Bullock's affidavit,after introducing that he was presently solicitor on the record, said that his firm and he" ceased acting for [the defendants] on 19 October 2023".[6] Having received that application, Mr Tingey filed a memorandum, in effect,calling for Mr Bullock to explain the basis upon which he had ceased to act.Mr Tingey explained that he had called upon Mr Bullock to provide an explanationdirectly to him but Mr Bullock's position was he did not consider it was appropriateto do so. Mr Tingey sought an order that Mr Bullock swear a further affidavit settingout why he his firm had ceased to act.[7] The hearing of this proceeding has not concluded. The Ruling as toadmissibility, as well as timetabling, and the defendants' affidavit also timetabledfurther submissions, albeit they were to be brief.[8] Mr Bullock does not have an absolute right to withdraw as counsel, so much isimplicit in the need for there to be an application with an affidavit giving the groundsfor that application.[9] I issued a Minute requesting Mr Bullock explain further the reasons for himceasing to act. That Mr Bullock had ceased to act is implicit in the fact of hisapplication and so saying he has ceased to act is no more than confirming what isobvious on the face of the application. However, given the reasons for Mr Bullockceasing to act, may raise issues of privilege, I said Mr Bullock could file his responsefor the Court's attention only. Mr Bullock has filed an explanatory memorandum andI direct that memorandum is to be sealed and not to be searched without leave ofa Judge.[10] I commented in another decision,1 that the better practise in an application bycounsel to withdraw is for the affidavit to provide appropriate detail of the reasonswhy counsel has ceased to act but for that to be filed on the basis the affidavit will not1 Baker v Libeau [2022] NZHC 2826.be available to other parties. Counsel in those circumstances can expect the Court torespect their claim for privilege.[11] I am satisfied that it is appropriate that there be an order that Mr Bullock begranted leave to withdraw as counsel in this proceeding.[12] I am not familiar with the other proceedings in which Mr Bullock is involvedbut I see no reason why those matters which are not subject to a present hearing, shouldbe any different.[13] Accordingly, there is leave to Mr Bullock to withdraw as counsel in the othermatters named in the above intituling.[14] Why reasons should be given by counsel beyond simply saying they haveceased to act, may be relevant to how the Court addresses the balance of a proceedingif it is unresolved, or treats requests by the party no longer represented for further timeto meet existing timetables. It is not appropriate that the Court deal with such mattersin a vacuum.[15] The order that Mr Bullock has ceased to act as counsel will take effect uponhim filing an affidavit of service of the application on the defendants.2 Mr Bullockshould also advise the Court and Senior Trust of the latest address he has for thedefendants, if they are different to those shown on the statement of claim.___________________________________Associate Judge LesterSolicitors:Couch Harlowe Kovacevich, Auckland (for Plaintiff)Lee Salmon Long (formerly for Defendants)Copy to counsel:M J Tingey, Barrister, Auckland (for Plaintiff)2 Robert Osborne and others McGechan on Procedure (online ed, Thomson Reuters)at [HR5.41.03].