Plumpton v Terry [2018] NZHC 2241 (28 August 2018)

Last Updated: 24 September 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-562 [2018] NZHC 2241

BETWEEN	KEVIN IAN PLUMPTON First Plaintiff UCFX LIMITED Second Plaintiff
AND	JAMES TERRY First Defendant BRENT DAVID COLBERT Second Defendant

Hearing:	28 August 2018
Appearances:	B P Henry and L Player-Bishop for Plaintiffs T J P Bowler for Defendants
Judgment:	28 August 2018

(ORAL) JUDGMENT OF LANG J

[on application by plaintiffs for leave to file amended statement of claim and application by defendants for adjournment of trial]

PLUMPTON v TERRY [2018] NZHC 2241 [28 August 2018]

[1] This proceeding was brought before me today as a matter of urgency to deal with an application by the plaintiffs for leave to file an amended statement of claim and an application by the defendants for an order adjourning the trial scheduled to commence on 17 September 2018.

[2] Having been through the proposed amendments in the statement of claim, I am satisfied the defendants are not embarrassed by the statement of claim being amended at this late stage. There can be no objection at all in relation to any of the proposed amendments other than that relating to the new eighth cause of action.

[3] The new cause of action will not, however, require the defendants to serve additional evidence. Rather, it raises a legal issue and depends on facts pleaded in relation to earlier causes of action. For that reason, and provided sufficient time is given to the defendants to file an amended statement of defence, I see no prejudice to the defendants in the new pleading being filed. Leave is granted to file the amended statement of claim accordingly. I direct that any statement of defence to the amended statement of claim is to be filed and served no later than 10 September 2018.

[4] The defendants apply for an adjournment of the trial on the basis that the plaintiffs have served their evidence late and have also advanced a late application for an amendment of their pleading. I understand entirely the defendants’ frustration about the delays that have occurred. Nevertheless, any adjournment of a three week trial at this stage would require the parties to wait approximately 12 months for another fixture. I do not consider that to be in the interests of justice when the matter is so close to a hearing.

[5] I propose to provide the defendants with some additional breathing space by giving them until 10 September 2018 to serve their briefs of evidence. Mr Henry, for the plaintiffs, has indicated that if the defendants could serve any expert briefs earlier than that date, then he will be able to be in a position to provide reply briefs at an earlier date than might otherwise be possible.

[6] I dismiss the application for an adjournment, but grant the extension of time for the service of the defendants’ briefs. Any briefs in reply are to be filed and served no later than 13 September 2018.
[7] The timetable directions given by Hinton J in the Minute issued on 23 August 2018 are further amended by altering the date in [9](g) and (i) to 13 September 2018. I delete the direction in [9](h) and replace it with a direction that the experts are to endeavour to file a joint report prior to the commencement of the trial.

Costs

[8] Costs in relation to the present applications are to lie where they fall.







Lang J

Solicitors:

Anthony Harper, Auckland

Neilsons Lawyers, Onehunga, Auckland B Henry, Auckland