Avison v McFarlane

[2015] NZCA 471

IN THE COURT OF APPEAL OF NEW ZEALAND

CA498/2014
[2015] NZCA 471

BETWEEN

NGAIRE JANE ELIZABETH AVISON
Appellant

AND

WAYNE JAMES MCFARLANE, NGAIRE JANE ELIZABETH AVISON AND DAVID WILLIAM BUTLER AS TRUSTEES OF THE AVIAN TRUST
First Respondents

WAYNE JAMES MCFARLANE
Second Respondent

Court:

Cooper, Venning and Williams JJ

Counsel:

J C Gwilliam for Appellant
R J Fowler QC for Respondents

Judgment:

(On the papers)

5 October 2015 at 10 am

JUDGMENT OF THE COURT

The application for recall is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Williams J)

1. Mr Fowler QC filed a memorandum on 14 September 2015, the tenor of which was to seek recall of the costs aspect of our judgment of 16 June 2015.[1]  Such recall requires a “very special reason”.[2]

   [1]Avison v McFarlane [2015] NZCA 409 at [78].

   [2]Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC) at 633.

2. Mr Fowler submits that his client made a Calderbank offer to settle the appeal on terms, he submitted, “virtually identical” to the outcome in the appeal.  Mr Fowler appended the 30 March 2015 correspondence to his memorandum.  He submitted that the offer should have been taken into account in the costs award.

3. Mr Gwilliam filed a memorandum in response submitting that:

   (a)the Calderbank offer was in fact only the first in a series of offers and counter-offers and was, in any event, ultimately withdrawn;

   (b)the exchange of correspondence related to the potential settlement of a number of outstanding issues only some of which were before this Court in the appeal;

   (c)the result was not virtually identical to the respondent’s Calderbank offer because other assets and issues were the subject of the offer (and subsequent counter-offer) and those matters were not before this Court; and

   (d)in any event, the proposed settlement was unsatisfactory from a practical point of view as it would have involved Ms Avison owning a property she did not want situated next door to Mr McFarlane and his new wife.

4. We do not consider that there is any “very special reason” to recall the judgment and revisit the costs award in this appeal.  We agree with Mr Gwilliam that the Calderbank offer put before us was directed at resolving all issues, not just those live in the appeal.  In particular, it proposed a resolution that was not open to this Court to direct in the appeal.  In addition, the offer identified was not the last offer made by Mr Fowler’s client.  Its relevance is therefore peripheral at best.  The last offer made by Mr Fowler’s client, dated 20 May 2015, also had all of the problematic attributes to which we have referred in relation to the first offer.

5. We conclude therefore that it cannot be said that the offer of 30 March 2015 would have made any material difference to costs in the appeal.  The application for recall is dismissed accordingly.

Solicitors:
Main Street Legal Ltd, Upper Hutt for Appellant
JAG Legal, Lower Hutt for Respondents