Anderson v NZI International Acceptances Ltd

[2022] NZCA 167

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA242/05
 [2022] NZCA 167

BETWEEN	STEPHEN GILBERT ANDERSON Applicant
AND	NZI INTERNATIONAL ACCEPTANCES LIMITED, NZI SECURITIES LIMITED AND NZI FINANCES LIMITED Respondents

Court:	Cooper P and Goddard J
Counsel:	Applicant in person T G H Smith for Interested Party
Judgment: (On the papers)	6 May 2022 at 9 am

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

1. On 16 March 2006 this Court dismissed an appeal by Mr Anderson against a decision of Chisholm J dated 20 October 2005.[1]

   [1]Anderson v NZI International Acceptances Ltd CA242/05, 16 March 2006.

2. Mr Anderson now seeks that the judgment of this Court be recalled.  The application is opposed by IAG New Zealand Ltd, an interested party.

3. This Court’s approach to applications for the recall of judgments in civil proceedings was set out in Erwood v Maxted, in the following terms:[2]

   [2]Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466.

   [23]     This Court is concerned with the proliferation of unjustified applications to recall judgments and has agreed upon the following guidelines to deal with such applications.

   (a)      Accidental slips or omissions

   (i)       Any accidental slip or omission may be corrected under r 8 of the Court of Appeal (Civil) Rules 2005.

   (ii)      Where the parties are agreed that an error or omission which falls within r 8 should be remedied, a joint memorandum may be filed for consideration by the Court.

   (iii)     Where there is no agreement, or where the Court directs, a formal application is required in accordance with the process set out in (c) below.

   (b)      Applications to recall judgments not falling within r 8

   (i)       Where a party seeks to recall a judgment not falling within r 8, the criteria set out in Horowhenua County v Nash (No 2)[1968] NZLR 632 at p 633 (as confirmed by this Court in Unison Networks Limited v Commerce Commission [2007] NZCA 49) are to be followed and will be strictly applied.

   (ii)      Applications which merely seek to relitigate matters already considered, or to challenge substantive findings of fact and law, will not be entertained.  Reference may usefully be made to Ngahuia Reihana Whanau Trust v Flight CA23/02 26 July 2004; and Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832.

   (c)       Process

   (i)       Where a formal application is required in terms of these guidelines:

   (a)it must be made on notice to all other parties;

   (b)any party served with an application need not respond unless directed to do so by the Court;

   (c)the Court will deal with the application on the papers or by oral hearing in terms of r 51(6);

   (d)the Court will usually give only brief reasons for its decision on any application;

   (e)any further application seeking to recall a decision refusing an application to recall will usually be dealt with summarily; and

   (f)the Court will consider ordering increased or indemnity costs against parties and/or counsel bringing unmeritorious applications.

4. In Unison Networks Ltd v Commerce Commission this Court observed:[3]

   [10]     The principles governing recall of a judgment are well settled and are set out in [Horowhenua County]:

   Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal.  Were it otherwise there would be great inconvenience and uncertainty.  There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

   [3]Unison Networks Ltd v Commerce Commission [2007] NZCA 49.

5. The basis of Mr Anderson’s present application is simply that he, acting for himself in 2006, failed to raise various arguments that he now says were available to him.  He says these arguments would have enabled him to make a claim that NZI Bank had knowingly or unlawfully acted in breach of s 90 of the Property Law Act 1952.  Mr Anderson says that, as a consequence, the subsequent sale of the mortgaged property was unlawful.

6. That argument is plainly unable to bring Mr Anderson within the first and second grounds for recall discussed in Horowhenua County.  He can only seek recall under the third category, which requires him to establish that there is some “other very special reason” that the judgment must be recalled in the interests of justice. A desire now, some 16 years later, to recall a judgment because of arguments available but not pursued at the time does not amount to a “very special reason” requiring the Court’s judgment to be recalled.

7. The application for recall is declined. 

Solicitors:
IAG New Zealand Ltd, Auckland as Interested Party