Goodfellow v Brown [2016] NZHC 984 (16 May 2016)

Last Updated: 25 May 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-805 [2016] NZHC 984

BETWEEN	THOMAS BRUCE GOODFELLOW AND MARION ELIZABETH GOODFELLOW AS TRUSTEES OF THE BROWN FAMILY SPECIAL NEEDS TRUST Plaintiffs
AND	NIGEL BROWN Defendant

Hearing:	16 May 2016
Appearances:	A E Hansen for Plaintiffs M J Robinson for Defendant
Judgment:	16 May 2016

JUDGMENT OF LANG J

[on application by defendant for order granting leave to file

_{amended statement of defence]}

This judgment was delivered by me on 16 May 2016 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

_{Date...............}

GOODFELLOW v BROWN [2016] NZHC 984 [16 May 2016]

[1] The defendant in this proceeding, Mr Nigel Brown, was formerly married to Mr and Mrs Goodfellow’s daughter Claire. Mr and Mrs Goodfellow contend that they loaned Mr Brown and Claire approximately $422,000 in order to enable them to buy a house. They now seek repayment of that sum.

[2] Claire acknowledges the monies are owing to her parents. Mr Brown does not. As a result, Mr and Mrs Goodfellow have issued this proceeding against Mr Brown seeking to recover one-half of the amount they say is owing. Mr and Mrs Goodfellow’s claim against Mr Brown has been allocated a two day fixture commencing on 30 May 2016.

[3] Mr Brown now seeks leave to amend his statement of defence to incorporate an additional defence. Leave is necessary because the close of pleadings date has passed.¹

The proposed amendment

[4] The proposed amendment will allege that Mr and Mrs Goodfellow did not provide the funds that Mr Brown and Claire used to purchase their house. Rather, the funds belonged to Claire, and were paid to her in part repayment of a debt owing to her by a company called Amalgamated Dairies Limited (Amalgamated Dairies).

[5] The issue has arisen because Mr Brown has recently realised the significance of documents held by Amalgamated Dairies. Documents that Mr Brown has adduced in support of the application appear to show that the funds used to purchase the house were paid from a current account or debt facility held by Claire with Amalgamated Dairies.

Jurisdiction

[6] There is no dispute regarding the principles to be applied in determining the application. They have been enunciated in cases such as Elders Pastoral v Marr,

¹ High Court Rules, r 7.7.

Body Corporate 172108 v Gundry, Shanton Apparel Ltd v Thornton Hall Manufacturing Ltd and Fordham v Xcentrix Communications Ltd.² In short, the Court is required to be satisfied that the amendment is necessary to determine the real controversy between the parties, and that the amendment will not cause undue delay or prejudice to the other parties to the proceeding.

Grounds of opposition

[7] Mr and Mrs Goodfellow strongly oppose leave being granted. They contend Mr Brown has been guilty of egregious delay in seeking to amend his defence in this way. They point out that he has had knowledge of the documents underlying the proposed defence for a considerable period of time because they were disclosed to his solicitors during negotiations relating to the division of relationship property. They argue that Mr Brown he should have pleaded the new defence well before now if he wished to rely upon it.

[8] Mr and Mrs Goodfellow also say they are prejudiced by the late inclusion of the proposed defence. They will need to call an additional witness from Amalgamated Dairies to give evidence to explain the transactions and documents on which Mr Brown now relies. The witness is currently overseas, and is not due to return to New Zealand until 22 July 2016. Mr and Mrs Goodfellow are also concerned that the additional defence may cause the trial to be extended beyond the current estimate of two days.

Decision

[9] I accept that Mr Brown has been guilty of delay in raising this issue. His present counsel represented him during the relationship property negotiations, and ought to have appreciated at a much earlier stage the apparent significance of the

_{documents on which Mr Brown now seeks to rely.}

² Elders Pastoral v Marr [1987] NZCA 18; (1987) 2 PRNZ 383 (CA) at 385; Body Corporate 172108 v Gundry [2-

14] NZHC 954 at [40]; Shanton Apparel Ltd v Thornton Hall Manufacturing Ltd [1989] 3 NZLR

304 (CA); Fordham v Xcentrix Communications Ltd (1996) PRNZ 682 (HC) at 3.

[10] Without more, however, delay will not preclude leave being granted.³ In this context the interests of justice are paramount. Although delay by an applicant will always be a relevant factor, it is more likely to assume significance in cases where it produces prejudice to other parties to the proceeding.⁴

[11] I consider the interests of justice require Mr Brown to be able to advance this defence. It may not ultimately succeed, because Mr and Mrs Goodfellow are confident they can demonstrate that it is entirely without merit. At present, however, the documents upon which Mr Brown seeks to rely are sufficient to provide an arguable basis for the defence.

[12] Although I accept that there will be some prejudice to Mr and Mrs Goodfellow, this can be met by adjourning the trial date for a brief period to enable their witness to return from overseas. The estimated length of the trial will also need to be extended to ensure that the new evidence can be accommodated.

Result

[13] The application is granted. Mr Brown is to file and serve the amended statement of defence no later than 5 pm on 18 May 2016.

[14] The trial presently scheduled to commence on 30 May 2016 is vacated. In its place I direct that a trial of three days duration is to commence on 15 August 2016 at

10 am.

[15] Mr and Mrs Goodfellow are to serve any additional briefs of evidence dealing only with the new defence no later than 3 August 2016. Any briefs of evidence in response are to be served no later than 10 August 2016.

Costs

[16] Although the application has been successful, the Court has granted Mr

_{Brown an indulgence because of his delay in seeking to advance the defence. Mr}

³ _{Body Corporate 338356 v Endean [2014] NZHC 2644 at [46].}

⁴ Body Corporate 323716 v Mason [2016] NZHC 728 at [11].

and Mrs Goodfellow are entitled to be reimbursed for defending an application that should not have been necessary. They are therefore awarded costs on a category 2B

_{basis together with disbursements as fixed by the Registrar.}

Lang J

Solicitors:

Heimsath Alexander, Auckland

Turner Hopkins, Auckland