BETWEEN ANTHONY PRATT KAYE AND MORVA KAYE Applicants AND NORRIS WARD MCKINNON Respondent

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI O AOTEAROA

SC 125/2021
[2024] NZSC 138

BETWEEN	ANTHONY PRATT KAYE AND MORVA KAYE Applicants
AND	NORRIS WARD MCKINNON Respondent

Court:	Glazebrook, Ellen France and Kós JJ
Counsel:	Applicants in person
Judgment:	15 October 2024

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment of 23 April 2024 (Kaye v Norris Ward McKinnon [2024] NZSC 39) is dismissed.
BThere is no order as to costs.
CThe Registrar is directed not to accept for filing any further documents from the applicants relating to this matter.

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REASONS

The applicants seek leave to recall this Court’s judgment of 23 April 2024[1] declining the application for recall of the Court’s judgment of 3 December 2021.[2] Recall is sought on the basis the Court’s approach relied on what the applicants say is a “false assumption” that the matters of which they complain have been dealt with fully and correctly.
[1]Kaye v Norris Ward McKinnon [2024] NZSC 39 (Glazebrook, Ellen France and Kós JJ).
[2]Kaye v Norris Ward McKinnon [2021] NZSC 168 (O’Regan, Ellen France and Williams JJ). This is accordingly the second application for recall concerning the originating 3 December 2021 judgment.
The contention the Court has proceeded on a false assumption that the applicants’ complaints were addressed fully and correctly highlights the point made in our judgment of 23 April 2024. Namely, that the applicants are simply seeking to reargue their case with a view to achieving a different outcome. That does not provide a very special reason for departing from the important principle of finality.[3] Nothing has been advanced which meets the test for recall.
[3]See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 as cited in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].
The application for recall is accordingly dismissed.
As the respondent was not asked to make any submissions, we make no order as to costs.
The Registrar is directed not to accept for filing any further documents from the applicants relating to this matter.[4]
[4]See Greer v Smith [2015] NZSC 196, (2015) 22 PRNZ 785 at [6].

CaseChat Overview and Summary

The applicants, Anthony Pratt Kaye and Morva Kaye, sought to recall a Supreme Court judgment from April 2024, which had previously declined their application to recall a December 2021 judgment. The respondents to the recall application are Norris Ward McKinnon. The central issue before the Court was whether the applicants were entitled to have the earlier judgment recalled on the grounds that the Court had made a false assumption in dismissing their application for recall. The applicants argued that the Court had overlooked certain matters, and the dismissal was based on an incorrect premise. The Court had to determine whether the applicants' claims met the stringent criteria for recall, which includes demonstrating that the judgment was obtained by fraud, or that there was a special reason to depart from the principle of finality.

The Court found that the applicants' primary contention was that the Court had overlooked certain issues, but this did not constitute a special reason for recall. The applicants were essentially seeking to reargue their case rather than presenting new evidence or arguments that would justify a departure from the principle of finality. The Court emphasised that recall is an extraordinary remedy and should only be granted in exceptional circumstances. The Court found that the applicants' attempt to reargue their case did not meet the required threshold for recall. Consequently, the application for recall was dismissed, and no order was made regarding costs.

The Court directed that the Registrar would not accept any further documents from the applicants in relation to this matter. This directive was intended to prevent the applicants from continuing to pursue the same issues through repetitive applications. The Court's decision underscored the importance of the finality of judgments and the limited circumstances under which recall may be granted. The Court's judgment reaffirmed the high threshold that must be met for recall, ensuring that the principle of finality is upheld in the judicial process.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established