Auckland Regional Council v Holmes Logging Limited HC Auckland CRI 2009-404-35

[2010] NZHC 1384

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2009-404-35
CRI 2009-404-36

CRI 2009-404-37

AUCKLAND REGIONAL COUNCIL

Appellant

v

HOLMES LOGGING LIMITED AND KENNETH ANGUS HOLMES

Respondents

Hearing:         (on papers)

Appearances: J C Gordon SC for the Applicant

P M Fee for the Respondents

Judgment:      6 August 2010 at 10:00 a.m.

JUDGMENT OF WOODHOUSE J (application for recall)

This judgment was delivered by me on 6 August 2010 at 10:00 a.m pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Ms J C Gordon SC, Meredith Connell, Office of the Crown Solicitor, Auckland

Mrs P M Fee, Jones Fee, Solicitors, Auckland

AUCKLAND REGIONAL COUNCIL V HOLMES LOGGING LIMITED AND HOLMES HC AK CRI 2009-

404-35  6 August 2010

[1]      The respondent has applied to recall the judgment delivered on 17 June 2010. It is unnecessary to record the grounds for the application, because there is a preliminary point of jurisdiction.

[2]      The respondent, in the memorandum dated 4 August 2010, has confirmed that the respondent does not contend that the judgment of 17 June 2010 is a nullity. In that circumstance, the respondent accepts that there will be no jurisdiction to recall the judgment if the judgment was perfected before the respondent filed the application for recall.  The application for recall is dated 29 June 2010.

[3]      The respondent has submitted, in reliance on R v Nakhla (No 2)1 and Chahil v R2 that “perfection of a judgment takes place when the judgment is recorded by the proper officer at the court of trial rather than the date on which the judgment was delivered”.  I will leave open the question whether a judgment is perfected when it is

formally delivered (which in this case occurred on 17 June 2010, as certified by a deputy registrar).   On that basis the question is whether a formal record of the judgment has been made by an appropriate officer of the court, apart  from the certification of delivery of judgment.   Certification of the entry of judgment was made, by a deputy registrar, on 17 June 2010.  A copy of the formal certificate is annexed.

[4]      I  am  accordingly  satisfied  that  the  judgment  was  perfected  before  the application for recall was made and, in consequence, there is no jurisdiction to

consider the application for recall.

Peter Woodhouse J

1 [1974] 1 NZLR 453 (CA).

2 [2010] NZCA 253.