Svitzer Salvage BV v Z Energy Limited [2012] NZHC 2425 (28 August 2012)

Last Updated: 24 September 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-452 [2012] NZHC 2425

UNDER An Admiralty action in personam

BETWEEN SVITZER SALVAGE BV Plaintiff

AND Z ENERGY LIMITED First Defendant

AND SEAFUELS LIMITED Second Defendant

Hearing: 28 August 2012

Appearances: Mr L Taylor for Plaintiffs

Mr R Gordon for First Defendant

Ms P Barratt and Mr R Carruthers QC for Second Defendant

Judgment: 28 August 2012

_{ORAL JUDGMENT OF ASSOCIATE JUDGE DOOGUE}

Counsel:

Izard Weston, Solicitors, Wellington

Minter Ellison Rudd Watts, Wellington

Jones Fee, Auckland

SVITZER SALVAGE BV V Z ENERGY LIMITED & Anor HC WN CIV-2012-485-452 [28 August 2012]

[1] On 20 July Associate Judge Gendall gave judgment in this matter on the applications to strike-out which were brought by the first and second defendants and the summary judgment application brought by the second defendant. There have been applications filed to review those decisions and an appeal has been filed against the summary judgment application. The review applications to be heard in this Court are to be dealt with on 1 October 2012.

[2] In the meantime a disagreement has emerged between the parties as to whether the progressing of this matter through its interlocutory phases should pause pending the outcome of the review/appeal matters. On the one hand the plaintiff submits that the proceeding should continue and that in particular discovery should now be undertaken by all of the parties. Mr Taylor for the plaintiff says that there can be no prejudice to the parties because if ultimately the defendants are successful they can get costs orders.

[3] The approach that the two sides took on the principles to apply were slightly different. Mr Taylor relied upon the traditional tests that are applied for granting stays in cases where appeals have been filed. Mr Gordon with whom Mr Carruthers allied himself preferred to see the matter as one of involving sensible case management directions. In the end it probably does not matter very much because, as Mr Carruthers said, it is a matter of balancing up the prejudice to each side.

[4] The first point is to determine what the likely prejudice would be if the interlocutory progress with this matter was deferred pending the outcome of the review/appeals. A fairly clear picture emerges about what would happen in the case of the reviews. If it is assumed that judgment of the High Court would be forthcoming around early to mid-November 2012 there is likely to be an interval of about six weeks or more from this point until work commences on preparing affidavits of documents. Counsel’s estimates are that thereafter discovery might take some eight weeks to complete. If there was a delay until mid-November and then discovery was agreed and the parties carried out the necessary work it would seem that a suitable target date to complete discovery would be early 2013 – say the end of January early February 2013.

[5] Thereafter there will be other interlocutory matters that will need to be negotiated. Following that the case would join the queue for a trial which would depend upon the Court’s availability to provide a trial date which in turn would be dependent upon duration, counsel’s availability etc. Even if the parties progressed with all speed now it is unlikely that a substantive hearing would occur before the final quarter of 2013. In the meantime, so far as any prejudice to the plaintiff is concerned, it would seem that if there was elongation of the proceedings there would be at least some compensation to the plaintiff available in the form of Court ordered interest.

[6] Taking an overall view of the proceedings it is my view that deferring the matter of discovery until later in this year or early 2013 would not be substantially prejudicial to the plaintiff in the long term.

[7] The way forward from here it seems to me should be that at the conclusion of the review hearing an early date should be fixed to have the Associate Judge or whoever has control of the proceedings, fix the interlocutory timetable from that point forward including the question of discovery.

[8] For those reasons it seems to me that the applications for stay are not necessary and they are dismissed.

_{[9] Costs on the applications are reserved.}

J.P. Doogue

Associate Judge