Bell v BDO Spicers Manawatu Limited - [2013] NZHC 1287

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2012-485-166 [2013] NZHC 1287

BETWEEN ROBERT ARTHUR BELL Applicant

AND

BDO SPICERS MANAWATU LIMITED Respondent

Hearing: On papers

Counsel:

P Chisnall for Applicant
A Darroch for Respondent

Judgment:

31 May 2013

JUDGMENT OF WILLIAMS J (APPLICATION FOR RECALL AND LEAVE TO APPEAL)

In accordance with r 11.5, I direct the Registrar to endorse this judgment with the delivery time of 3.30pm on the 31st May 2013.

Introduction

[1] On 11 July 2012, I issued a judgment dismissing (except to a minor extent) Mr Bell’s appeal against a decision in the District Court finding him liable to pay two invoices issued by BDO, interest at 2 per cent per month and solicitor client costs. Mr Bell now applies for my judgment to be recalled or alternatively for leave to appeal to the Court of Appeal. BDO also seeks costs on the appeal. I will deal with the application for recall first.

The application for recall

Applicant’s submissions

[2] Mr Bell submits the judgment of 11 July 2012 should be recalled.

BELL v BDO SPICERS MANAWATU LIMITED [2013] NZHC 1287 [31 May 2013]

[3] He relies on the third category for recall set out in Horowhenua County v Nash (No 2): that “for very special reason[s] justice requires” the judgment be recalled. He submits this basis is made out, for three reasons as follows:

(a) First, in dismissing Mr Bell’s appeal on liability on the basis of mutual waiver of the existing agreement and formation of a subsequent oral agreement, I breached Mr Bell’s right to natural justice, because that ground had not been pleaded [by BDO]. The lack of any reference to this ground in BDO’s statement of claim meant Mr Bell did not have a fair opportunity to address the case against him.

The proper course would have been for BDO to have applied for leave to amend its pleadings and for Mr Bell to respond to the application (by opposing it, or if his opposition were unsuccessful, to apply for an adjournment to amend his own pleadings, file evidence in response, etc).

Mr Bell submits that any application would likely have been unsuccessful, because if granted, it would have caused Mr Bell prejudice by requiring him to meet an entirely different type of case (one requiring evidence for or against oral waiver, rather than one focussed narrowly on statutory interpretation).

Even if leave to amend were granted, the [amended] claim would have been unsuccessful. Mr Bell would have given evidence, and would also have pointed to the NZ Institute of Chartered Accountants Code of Ethics (which directs arrangements generally be reduced to writing).

(b)Second, Mr Bell argues that new evidence has come to light that materially undermines the finding of mutual waiver. The evidence is letters of engagement (one original, one copy) dated 17 September
2008, sent by BDO to Mr Bell, signed by Mr Hopping for BDO but unsigned by Mr Bell and not returned to BDO (i.e.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NZHC 1287
Decision Date: 31 May 2013

CaseChat Overview and Summary

Robert Arthur Bell, the applicant, has filed an application for recall and leave to appeal against the decision of Williams J from 11 July 2012, dismissing his appeal against a District Court decision that found him liable for two invoices issued by BDO Spicers Manawatu Limited, interest at 2 per cent per month, and solicitor-client costs. The applicant contends that the judgment should be recalled based on new evidence that has come to light, which materially undermines the finding of mutual waiver. BDO Spicers Manawatu Limited, the respondent, opposes the application, arguing that the power to recall is one that should be exercised sparingly and that the third ground for recall should be applied circumspectly. Williams J finds that the applicant was taken by surprise by the finding as to oral waiver and that the discovery of fresh evidence can, in some circumstances, found a recall application. The judge grants the applicant’s application to recall the judgment and, on the basis of the new evidence adduced, finds that the waiver argument can now have no application. The applicant must pay $6580.98 to the respondent. The respondent is entitled to half of its claimed $14,021.38 costs, amounting to $7010.69. Costs on this application are reserved.

Orders