RE WRIGHT ASSET MANAGEMENT LTD [2022] NZHC 1611

RE WRIGHT ASSET MANAGEMENT LTD [2022] NZHC 1611 [7 July 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECIV-2022-409-000237[2022] NZHC 1611UNDER Part 19 of the High Court RulesIN THE MATTER of an application by WRIGHT ASSETMANAGEMENT LIMITED as trustee ofTHE VERONA TRUSTHearing: On the papersCounsel: Lady Deborah Chambers QC for ApplicantJudgment: 7 July 2022JUDGMENT OF ASSOCIATE JUDGE PAULSENThis judgment was delivered by me on 7 July 2022 at 3.30 pmpursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:[1] The applicant wishes to file an application seeking orders:(a) releasing and discharging an undertaking given by David Lang ofSaunders & Co, Solicitors, on 7 May 2021 to Claymore Partners actingon behalf of Patrizia Marchi; and(b) authorising payment of the funds subject to the undertaking to theapplicant.Background[2] By way of background to the application:(a) Gary Wright and Patrizia Marchi are former de facto partners.(b) In early 2021, Mr Wright and Ms Marchi were negotiating the terms ofa s 21A Property (Relationships) Act 1976 agreement.(c) On 6 May 2021, the applicant sold a property to facilitate payment toMs Marchi under a draft s 21A agreement. The same day, ClaymorePartners, who act for Ms Marchi, asked Mr Lang to confirm that thesale proceeds would be held in Saunders & Co's trust account.(d) On 7 May 2021, Mr Lang gave an undertaking to Claymore Partners"to hold the sale proceeds in our trust account undisbursed until suchtime as [Ms Marchi] agrees to them being paid out, or a court order ismade in relation to the sale proceeds".(e) Settlement negotiations have broken down and the funds remain inSaunders & Co's trust account. It will be said by the applicant that thepurpose of the undertaking has been frustrated.(f) Claymore Partners have refused to release the undertaking.The application before me[3] The application that is before me is a without notice interlocutory applicationseeking directions:(a) Granting leave to commence the proceeding by way of originatingapplication.(b) As to service.(c) That Ms Marchi is to file any opposition to the application within10 working days of service.[4] In a minute dated 15 June 2022, I directed that a supporting affidavit andmemorandum of counsel should be provided, particularly for the application fordirections as to service. I have now received a detailed and helpful memorandumwith an affidavit of Lisa Jean Godwin, sworn 30 June 2022.Commencement by way of originating application[5] There is no standard procedural approach for applications to dischargesolicitors' undertakings.[6] The applicant relies upon r 19.5 of the High Court Rules 2016 which provides:19.5 Court may permit proceeding to be commenced by originatingapplication(1) The court may, in the interests of justice, permit any proceedingnot mentioned in rules 19.2 to 19.4 to be commenced byoriginating application.(2) The court's permission may be sought without notice.(3) The proposed originating application must be filed with anapplication for permission under this rule.[7] The applicant has sought permission to proceed by way of originatingapplication without notice in accordance with r 19.5(2).[8] The overarching test is whether it is in the interests of justice that a proceedingbe allowed to be brought under pt 19. The interests of justice mean that the Court mustsecure the just, speedy and inexpensive determination of the proceeding.1[9] In Hong Kong and Shanghai Banking Corporation Ltd v Erceg , Asher J said:2[25] These cases show that the type of proceeding suited to the originatingapplication procedure is a straightforward application, not requiring detailedpleadings or interlocutory orders for its fair resolution. Such a type ofproceeding tends to be an application under a specific statutory provision,where the issue that arises can be clearly defined, and the issues confined. Theprocedure is not well suited to the determination of substantive rightsinvolving the application of common law doctrines as distinct from statutorytests. It is not well suited to cases involving multiple parties, and cases wherethere is the possibility of cross claims or counterclaims.[10] The cases show that close attention must be given to the facts of each case inwhich leave is sought to use the pt 19 procedure, including the issues likely to arise,the complexity of the facts and issues, and the course the proceeding is likely to takeon its way to a hearing.3[11] I am satisfied that it is appropriate to grant the applicant leave to proceed underpt 19 in this instance for these reasons:(a) The main issue is the interpretation of a short solicitor's undertaking.Any wider relationship property issues, while relevant as context, areseparate and discrete considerations that will not need to be finallydetermined in this proceeding.(b) There is no need for detailed pleadings or interlocutory orders ordiscovery.(c) This case does not involve several parties.(d) Any evidence can effectively be presented by affidavit.1 Solar Bright Ltd v Martin [2019] NZHC 300 at [18].2 Hong Kong and Shanghai Banking Corporation Ltd v Erceg (2010) 20 PRNZ 652 (HC)3 Gallagher v Grant [2021] NZHC 1907.(e) The originating procedure would not cause any unfairness or prejudiceto any party.(f) There have been other cases where the Courts have followed thisapproach.4[12] I permit this proceeding to be commenced by way of originating application.Service[13] The applicant initially sought orders:(a) That the application be served by email on Claymore Partners, to whomthe undertaking was given and who act for Patrizia Marchi and PatriziaMarchi.(b) That service on Claymore Partners is deemed to be service on PatriziaMarchi.(c) That if Patrizia Marchi or Claymore Partners wish to oppose thisapplication, they are to file a notice of opposition within 10 workingdays of service being effected on Claymore Partners.[14] Since the filing of this application Claymore Partners have now confirmed theyare authorised to accept service of this proceeding on behalf of Ms Marchi.Accordingly, there shall be an order that the proceeding is to be served on ClaymorePartners on behalf of Ms Marchi.Time to oppose[15] The final issue is how long Ms Marchi should have to respond to theapplication. Rule 19.10 provides that the High Court Rules concerning interlocutoryapplications generally apply to proceedings commenced by originating application.Rule 19.10 relevantly provides:4 Re AWS Legal Solicitors [2015] NZHC 2086.19.10 Applications of rules relating to interlocutory applications(1) The following rules concerning interlocutory applications apply withall necessary modifications to proceedings commenced by originatingapplication:(f) rule 7.24 (notice of opposition to application):(g) rule 7.25 (affidavit to be filed with notice of opposition):(h) rule 7.26 (affidavit in reply):[16] Rule 7.24 of the High Court Rules relevantly provides:7.24 Notice of opposition to application(1) A respondent who intends to oppose an application must file and serveon every other party a notice of opposition to the application(a) before the end of the tenth working day after being served withthe application; and(b) no less than 3 working days before the hearing date.[17] There shall be a direction that Ms Marchi is to file and serve any notice ofopposition within 10 working days after being served with the originating application.Result[18] I make the following directions:(a) The applicant is granted leave to commence its proceeding under pt 19of the High Court Rules 2016.(b) The applicant shall serve the application upon Claymore Partners andPatrizia Marchi.(c) Service upon Claymore Partners shall be deemed to also be serviceupon Patrizia Marchi.(d) Any opposition to the application shall be filed within 10 working daysof service.(e) In the event that the application is opposed, it should be listed for atelephone case management teleconference at 2.00 pm on 4 August2022 before Judge Lester to timetable it to a hearing, and counselshould file memoranda at least two working days prior to theteleconference with any proposed timetable directions.(f) In the event the application is not opposed, the applicant may requestthe Registrar set the matter down in a Duty Judge List for hearing._______________________O G PaulsenAssociate JudgeSolicitors:Dallison Stone (BJJ Stone), Christchurch(Counsel: Lady Deborah Chambers QC)