HIGHLEY LIMITED AND ANOR V VODAFONE NEW ZEALAND LIMITED CA CA291/07

HIGHLEY LIMITED AND ANOR V VODAFONE NEW ZEALAND LIMITED CA CA291/07 19 November 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA291/07 [2007] NZCA 513BETWEEN HIGHLEY LIMITED First Appellant AND EFTWIRE LIMITED Second Appellant AND VODAFONE NEW ZEALAND LIMITED Respondent Hearing: 12 November 2007 Court: William Young P, Glazebrook and Chambers JJ Counsel: L Herzog for Appellants J A Browne for Respondent Judgment: 19 November 2007 at 11 amINTERIM JUDGMENT OF THE COURT A The respondent's application for leave to adduce further evidence ("the respondent's application") is adjourned. B If the appellants abandon their appeal against the High Court decision dated 9 March 2007, the respondent's application will thereupon be dismissed, with costs reserved. C If the appellants decide to continue with their appeal, the respondent's application will be heard on 18 February 2008. D The appellants must advise their election to the Court and the respondent on or before 30 November 2007.____________________________________________________________________REASONS OF THE COURT(Given by William Young P)Introduction[1] Highley Ltd and Eftwire Ltd have obtained leave to appeal against a judgment delivered by Winkelmann J on 9 March 2007 in which she varied orders made by Associate Judge Faire on an application by Vodafone and the Bank of New Zealand for further particulars. [2] At the hearing of the appeal, Vodafone wishes to rely on an affidavit obtained from Mr Paul Brisk on 21 September 2007 (ie after the judgment under challenge) and it seeks leave to produce that affidavit as further evidence. It is this application which was called on 12 November 2007 rather than the appeal itself. [3] The point upon which Winkelmann J gave leave to appeal was very narrow. In varying the orders made by the Associate Judge, she overlooked particulars which had already been ordered and provided. She noted in her leave judgment that:The nature of the error means that little will be required of the plaintiffs to comply with the further particulars ordered.She thought, wrongly in our view, that this error warranted a grant of leave to appeal because:There is potential for confusion created by the situation which would cause further delay, and wasted expense.It would have been far more simple to resort to the slip rule or to recall the judgment. [4] The utility of the present appeal (along with associated expense and presumably a delay in relation to the prosecution of the civil proceedings) is far from obvious. A draft amended statement of claim which is in the case on appeal would appear to supply the particulars contemplated by Winkelmann J. As to this we note that there is an ambiguously expressed comment in [22] of her judgment as to the "under-particularisation of each of the core elements". Given what follows in [23], we read that comment as applicable only to such of the core elements as are individually alleged to be confidential (and it is now clear that none are). Mr Herzog asserts the draft amended statement of claim complies with Winkelmann J'sjudgment. In light of that, he should get on and file it. If Vodafone contends the new claim is still lacking in particulars, it can then bring a fresh application for further particulars. Any ambiguities in Winkelmann J's 9 March judgment can then be tidied up. There seems no need for this Court's involvement in this particular pleading dispute. [5] At the commencement of the hearing on 12 November, we raised with Mr Herzog our concerns about the utility of the appeal and he indicated a general willingness to abandon the appeal. [6] In the course of the hearing we also expressed some concern about the application to admit the affidavit of Mr Brisk. In the present context, however, there is no need for us to make a formal decision about this application because it appears that the appeal will be abandoned. [7] Accordingly: (a) The respondent's application for leave to adduce further evidence ("the respondent's application") is adjourned. (b) If the appellants abandon their appeal against the High Court decision dated 9 March 2007, the respondent's application will thereupon be dismissed, with costs reserved. (c) If the appellants decide to continue with their appeal, the respondent's application will be heard on 18 February 2008. (d) The appellants must advise their election to the Court and the respondent on or before 30 November 2007.Solicitors: Nigel Faigan, Auckland for Appellants Wilson Harle, Auckland for Respondent