Belle v Pearsall

[2023] NZHC 3284

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-2207

[2023] NZHC 3284

UNDER

Property Law Act 2007

IN THE MATTER OF

An agreement for sale and purchase of land and the division of the proceeds of sale

BETWEEN

ANTHONY CARL WARREN BELLE

Plaintiff

AND

LEAH ISOBEL PEARSALL

Defendant

Hearing:

On the papers

Appearances:

K J Sheehan for Plaintiff

T M Newman for Defendant

Judgment:

20 November 2023

JUDGMENT OF O’GORMAN J

This judgment was delivered by me on 20 November 2023 at 3 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Kate Sheehan Lawyers, Auckland Keam Law, Auckland

BELLE v PEARSALL [2023] NZHC 3284 [20 November 2023]

[1]                  By an interlocutory application dated 14 November 2023 (the Recall Application), the plaintiff has applied to review  and/or recall  my  judgment  dated  9 November 2023, and in addition has objected to the defendant filing a memorandum when no notice of opposition or defence was filed or other formal steps taken, including under r 5.49 of the High Court Rules 2016 to object to jurisdiction.

[2]                  I have reviewed all aspects identified by the plaintiff as potential errors for slip correction, remedy or rectification pursuant to rr 11.9 and 11.10 of the High Court Rules. There are no aspects of the judgment identified in that application that I consider to be mistakes, errors or matters requiring correction within the scope of those rules:

(a)Re paras 1.1(a) of the Recall Application, the applicant/plaintiff referred to potential company law issues in (among other places) the plaintiff’s memorandum of counsel dated 3 November 2023 at [12]-[14], [19] and [25] and the plaintiff’s memorandum of counsel dated 7 November 2023 at [25].

(b)Re paras 1.1(b) of the Recall Application, the plaintiff’s claim to separate property, and the analysis of how that claim would be treated in substance/classified as a matter of law, is dealt with in detail in the judgment, with extensive reference to legal authorities. These are substantive appeal points, not slip issues.

(c)Re paras 1.1(c) and 1.2 of the Recall Application, as stated in the judgment, the present application relates to the proceeds of the family home, not any underlying disputes that may also exist between the parties about company matters. The defendant’s submission on this point is at para 6 of the submissions dated 7 November 2023 (submissions of counsel are made on behalf of the party concerned).

(d)Re para 1.3 of the Recall Application and paras [35] and [36] of the judgment, the phrase “by 31 October 2003” includes negotiations up to that time. The date of 31 October 2023 is the date of the urgent interim

application and supporting affidavit, which exhibited the without prejudice communications.

[3]                  In terms of the question of jurisdiction being addressed prior to the defendant having any opportunity to file opposition documents, this occurred in the circumstances recorded in the minute of 1 November 2023. The plaintiff sought urgent orders for interim relief in an interlocutory application filed and served only the day before. Counsel for the defendant appeared at that mention at short notice, effectively on a Pickwick basis. The defendant’s counsel objected to jurisdiction at that call. The fact that the plaintiff wished to proceed with seeking urgent interim orders that day, without affording the defendant the opportunity of filing opposition documents, necessitated the prior determination of the question of jurisdiction. The procedure set out at para [12] of the Court minute was timetabled with the consent of the parties.

[4]                  There has been no prejudice to the plaintiff in determining the issue of jurisdiction before formal opposition documents were filed. The question of jurisdiction was a concern already identified by the Court and it was necessary to address it anyway. In the Court minute of Fitzgerald J dated 2 October 2023 at [3], Fitzgerald J set out her initial view that the matter appears to be seeking orders in respect of relationship property, in which case matters may more appropriately be progressed in the Family Court.

[5]                  The balance of the application suggests disagreement with the findings in the judgment dated 9 November 2023. Those are matters for appeal, not slip correction or recall under rr 11.9 or 11.10.

[6]Accordingly, I dismiss the application.

O’Gorman J