WEALAND INTERNATIONAL (NEW ZEALAND) LIMITED V ACCORD INTERNATIONAL LIMITED HC AK CIV-2008-404-5392

WEALAND INTERNATIONAL (NEW ZEALAND) LIMITED V ACCORD INTERNATIONAL LIMITED HC AK CIV-2008-404-5392 19 December 2008IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2008-404-5392BETWEEN WEALAND INTERNATIONAL (NEW ZEALAND) LIMITED Applicant AND ACCORD INTERNATIONAL LIMITED Respondent Hearing: 19 December 2008 Appearances: Mr Hucker for applicant Mr Ewan and Ms Brugeyroux for respondent Judgment: 19 December 2008ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUESolicitors:Mr Hucker & Associates, P O Box 3843, Shortland Street, Auckland Wynyard Wood Lawyers & Notaries, P O Box 2217, Auckland[1] I am dictating this judgment at 11 a.m. This application has still not got underway as we have been dealing with various procedural problems since 10 a.m. One of those issues is the application by the respondent to file a further affidavit. I earlier ruled that the affidavit was outside the time limits set by the timetable orders made in this case and that I would not read it unless I could be justified in allowing the affidavit in evidence. I concluded that I would only be justified in departing from the timetable if there was some special feature present such as emergence of an issue that had caused surprise so that the respondents could not have anticipated the need to file and serve the affidavit. [2] The brief background to the application to file the fresh affidavit is as follows. Since the timetable was set in this case there has been a further development in that the High Court has delivered a judgment in another case involving Wealand International (NZ) Limited, the applicant. That is a decision of Asher J's which was issued on 3 December 2008. In that judgment Asher J examined the question of whether there was a substantial dispute raised by the application under s 289 of the Companies Act 1993. Coincidentally the contract, which was at the heart of the dispute in that case, was similar to the one being considered here today. Asher J in fact concluded that there was a substantial dispute and that accordingly proceeding by way of statutory demand and liquidation proceedings would not be appropriate. The judgment as I read it centres on the question, inter alia, of whether the contract payments to which the respondent claims to be entitled were dependent upon it establishing that it had payments to third parties in the course of providing training to an employee. [3] That issue, as I have told counsel this morning, suggested it to myself when I read these papers for the first time this morning. [4] The affidavit that the respondent wishes to now adduce bears on that issue. Is the contract concerned with payments which the employer makes to third parties for training purposes or does it also contemplate costs incurred internally as part of the same process?[5] Mr Ewan told me that in the other decision that Asher J made and to which I have been making reference, the Judge concluded that one could only resolve that matter if the 'factual matrix' material was made available to the Court. Mr Ewan said that part of that material included the exchange of emails in which the respondent asked the applicant whether the terms of the grant which the parties had agreed to contemplated internal type payments rather than external disbursements of money to third parties as part of the training process. It is said that in an email the applicant replied that both types of payment were contemplated – or words to that effect. Therefore Mr Ewan sees it as being decisive in this proceeding to have that email before the Court. [6] I am afraid that I adhere to my earlier view that it is now too late to try and adduce affidavits of this kind. Mr Ewan has told me that there may be no prejudice to the applicant. He further points to the fact that the applicant itself has apparently been in substantial breach of the timetable orders that Associate Judge Sargisson made earlier this year. [7] This matter was allocated a fixture in March of this year. It has taken till now to get a fixture date. The prospects of allowing still further affidavits in this case at this late stage, give rise to the possibility of this matter having to be adjourned, further affidavits been entertained and still another date allocated for the hearing of an application to set aside a statutory demand. The starting point must be that such delays, while not the fault of the parties, cannot be allowed to be further aggravated by filing of still further affidavits. Of course the need for the earliest possible hearing of proceedings of this kind may have to defer in proper cases where justice required that a party be given leave to file a further affidavit. In my judgment there are no such requirements here. The very issue upon which this affidavit is said to bear was there for all to see from the point the application was filed and in my view it would be quite wrong to further delay proceedings while that point is disposed of. [8] In my view the matter must proceed today and allowing a further round of affidavits would defeat that objective. I therefore decline to allow the respondent to file the additional affidavit._____________ J.P. Doogue Associate Judge