Chesterfields Preschools Limited (in liquidation) v Sisson

[2017] NZHC 192

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2016-409-000040 [2017] NZHC 192

BETWEEN

CHESTERFIELDS PRESCHOOLS

LIMITED (IN LIQUIDATION) Plaintiff

AND

THERESE ANNE SISSON Defendant

COMMISSIONER OF INLAND REVENUE

Intervener

Hearing:	13-16 February 2017
Appearances:	B M Russell and K M Kendrick for Plaintiff Defendant Appears In Person S Kinsler, P J Shamy and S L Russell for Intervener
Judgment:	17 February 2017

REASONS FOR JUDGMENT OF GENDALL J

As to application for leave to file amended statement of defence and

counterclaim

[1]      On 3 November 2016 the defendant in this proceeding Ms Sisson, filed an application in this Court for leave to file an amended statement of defence and counterclaim in response to the plaintiff's second amended statement of claim which was filed on 9 August 2016.

[2]      This application for leave came before me at the commencement of what was to  be a five day trial  of a range of matters  affecting these and  related parties, including this proceeding -40, on 13 August 2016.

[3]      In hearing this application for leave, at the outset counsel for the plaintiff

Mr Russell confirmed that the plaintiff did not oppose the application for leave

CHESTERFIELDS PRESCHOOLS LIMITED (IN LIQUIDATION) v SISSON [2017] NZHC 192 [17 February

2017]

insofar as it was seeking leave to file the amended statement of defence.  Mr Russell confirmed, however, that the defendant Ms Sisson’s application for leave to file the counterclaim was strenuously opposed by the plaintiff.  The application for leave to file the counterclaim was also opposed by the Intervener the Commissioner of Inland Revenue.

[4]      Given  these  matters  it  is  clear  that  the  application  for  leave  to  file  the amended statement of defence is now unopposed and leave is now granted to the plaintiff for the filing of this amended statement of defence.

[5]      So far as the application for leave to file the counterclaim is concerned, at the hearing of this matter on 13 February 2017 I dismissed the plaintiff’s application and indicated that my reasons for doing so would follow.  I now set out those reasons.

[6]      It is now 17 February 2017.  Yesterday, 16 February 2016, in the morning Ms Sisson  the  defendant,  and  the  other  parties  in  this  proceeding,  filed  a memorandum in this Court indicating that Ms Sisson withdrew her opposition to the plaintiff's  claim  in  this  proceeding  -40  and  now  judgment  could  be  entered  by consent in favour of the plaintiff in terms of the relief sought in the plaintiff’s second amended statement of claim.

[7]      With this in mind, the application for leave by the defendant Ms Sisson to file her counterclaim in this proceeding effectively serves no practical purpose here. Notwithstanding this, however, I will now set out briefly my reasons for dismissing Ms Sisson’s application for leave to file this counterclaim.

[8]      First, this proceeding -40 and the many other proceedings involving these and related parties have been before the Court for quite a considerable period.  Counsel for the plaintiff in this matter has noted that over some considerable time many attempts have been made by Ms Sisson in this and other proceedings to broaden the proper litigation issues between the parties.  These have included applications to this Court for a much wider form of particular discovery in this matter (rejected by Associate Judge Matthews and Nation J), and last minute attempts to file amended pleadings.

[9]      In this regard, the initial hearing of this proceeding -40 which was scheduled to commence on 28 November 2016 had been set down for many months before Ms Sisson purported to bring the counterclaim which is now the subject of her present application for leave.

[10]     Counsel  for  the  plaintiff  suggests  it  is  simply  too  late  now  for  this counterclaim to be permitted in the present proceeding.  He suggests it is not within the proper scope of the case involved in proceeding -40 which is confined to issues over ownership  of the  plaintiff Company’s  assets.    Mr  Russell  for  the plaintiff suggests that the present leave application is purely an effort to distract from what is the relatively narrow set of issues truly at stake in this proceeding -40 and that the counterclaim  involves  issues  already  canvassed  to  a  significant  extent  in  much earlier litigation between the parties.

[11]     These  submissions  are  supported  fully  by  Mr  Shamy  counsel  for  the

Commissioner of Inland Revenue and Mr Slevin counsel for the Official Assignee.

[12]     I accept the contentions advanced before me by Mr Russell for the plaintiff. The late raised counterclaim issues which seem to be directed at the Court imposed order that Ms Sisson should hold the 854 Colombo Street property for the Company in liquidation is simply not relevant to the matters involved in this particular proceeding -40 and would unnecessarily delay all matters.

[13]     For  these  reasons  the  application  by  Ms  Sisson  for  leave  to  file  the counterclaim in this proceeding in her application dated 3 November 2016 is dismissed.

[14]     In doing so, however, I note that effectively with the consent of all other parties, Ms Sisson’s application for leave to file the statement of defence itself is granted.

...................................................

Gendall J

Solicitors:

Lane Neave, Christchurch

Phillip Shamy, Christchurch

Meredith Connell, Christchurch

Copy to Ms Sisson