BODY CORPORATE 183523 AND ORS V TONY TAY & ASSOCIATES LIMITED AND ORS HC AK CIV 2004-404-004824

BODY CORPORATE 183523 AND ORS V TONY TAY & ASSOCIATES LIMITED AND ORS HC AK CIV 2004-404-004824

Because the supplementary discovery sought was clearly necessary to identify responsible parties and the first defendant repeatedly refused to comply with a court order, the appropriate sanction was to strike out the first defendant's defence; ancillary applications (judgment, costs) were reserved and the instructing solicitor was granted leave to withdraw.

Citation
openlaw-ae7dd948_4dcb_4866_9af6_24532d74f8cb.pdf
Parties
First Plaintiff: Body Corporate 183523; Second Plaintiffs: Grace Lee and Others; First Defendant: Tony Tay & Associates Limited; Second Defendant: Robin F. Sears; Third Defendant: Tony Meng Hiang Tay; Fourth Defendant: Graham Taylor; First Third Party: Aztech Coatings Limited; Second Third Party: Ross Roofing Limited; Third Third Party: Effective Fencing Limited; Fourth Third Party: Roy Mears; Fifth Third Party: Robin F Sears; Sixth Third Party: Graham Taylor
Court
High Court
Jurisdiction
New Zealand
Judgment Date
14 August 2008
Procedural Posture
Civil (negligence, Discovery Application) / Application to Strike Out Defence (special Fixture Hearing)
Outcome
First defendant's defence struck out; application otherwise adjourned sine die; costs reserved; Mr Hong granted leave to withdraw.
Legal Topics
Strike Out, Non Compliance With Discovery Order, Leave to Withdraw Counsel, Costs Reserved
Civil Litigation Negligence Discovery/disclosure Construction Law Strike Out Non Compliance With Discovery Order Leave to Withdraw Counsel Costs Reserved

Case Brief

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Parties

Body Corporate 183523

First Plaintiff

Grace Lee and Others

Second Plaintiffs

Tony Tay & Associates Limited

First Defendant

Robin F. Sears

Second Defendant

Tony Meng Hiang Tay

Third Defendant

Graham Taylor

Fourth Defendant

Aztech Coatings Limited

First Third Party

Ross Roofing Limited

Second Third Party

Effective Fencing Limited

Third Third Party

Roy Mears

Fourth Third Party

Robin F Sears

Fifth Third Party

Graham Taylor

Sixth Third Party

Procedural Posture

Civil (negligence, Discovery Application) / Application to Strike Out Defence (special Fixture Hearing)

Legal Issues

  1. 1 Whether first defendant failed to comply with Judge Sargisson's order to file a supplementary affidavit of documents
  2. 2 Whether the requested discovery is necessary for the fair resolution of the negligence claims
  3. 3 Whether striking out the defence is an appropriate remedy for non-compliance

Ratio Decidendi

Because the supplementary discovery sought was clearly necessary to identify responsible parties and the first defendant repeatedly refused to comply with a court order, the appropriate sanction was to strike out the first defendant's defence; ancillary applications (judgment, costs) were reserved and the instructing solicitor was granted leave to withdraw.

Court Disposition

First defendant's defence struck out; application otherwise adjourned sine die; costs reserved; Mr Hong granted leave to withdraw.

Orders

  • The first defendant's defence to the plaintiffs' claim is struck out
  • The plaintiffs' application is otherwise adjourned sine die and can be brought on seven days' notice