Billington v Morton - [2018] NZHC 3084

NOTE: PURSUANT TO S 169 OF THE FAMILY PROCEEDINGS ACT 1980, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B,

11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE SEE

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-751

[2018] NZHC 3084

IN THE MATTER Of the Family Proceedings Act 1980 and the Property (Relationships) Act 1976

BETWEEN

MALCOLM HAROLD BILLINGTON

Appellant

AND

DEBRA CHARLOTTE MORTON

First Respondent

AND

WILSON McKAY TRUSTEE COMPANY LIMITED

Second Respondent

Hearing: 21 November 2018

Appearances:

M H Billington (self-represented) K E Swadling for First Respondent

Judgment:

26 November 2018

JUDGMENT OF NICHOLAS DAVIDSON J (RECALL OF JUDGMENT)

BILLINGTON v MORTON ANOR [2018] NZHC 3084 [26 November 2018]

A. INTRODUCTION

[1] This judgment is given on Mr Billington’s application for recall (or review) of my judgment of 28 September 2018.1

[2] That judgment was given on appeal against a costs judgment of the Family Court whereby Mr Billington was ordered to pay costs of $50,000.00. That was after the substantive judgment of the Family Court had been taken on appeal to the High Court but settled as recorded in the Minute of Muir J dated 7 December 2017.

[3] On appeal, I upheld the costs judgment of the Family Court, including an uplift, and declined to grant leave for the cross-appeal as sought on behalf of the first respondent. Costs on the costs appeal were reserved and are for this judgment.

B. APPLICATION FOR RECALL

[4] Mr Billington now represents himself, advised by memorandum as to change of representation dated 11 October 2018. He was represented by counsel at the costs appeal.

Background to application

[5] His application for recall (as I will treat it, rather than ‘review’) is based on his contention that a submission in support of the costs appeal was filed by his then counsel without his approval. He says that when he saw it on 13 September 2018, he did not think it was complete, so prepared a supplementary submission dated 18 September 2018 which he expected to be filed prior to the hearing. The supplementary submission is six pages in length, with attachments.

[6] Because the judgment for which recall is sought makes no express reference to this supplementary submission, Mr Billington takes it that I was not provided with the “most significant facts” and he refers to para [55] of my judgment which states:

[55] I can find nothing in the settlement to demonstrate that the parties mutually recognised, or should be taken to have accepted, that there was something about the judgment that was wrong. Mr Billington plainly believes

1 Billington v Morton [2018] NZHC 2530.

that the settlement tempered the judgment, but it is another thing…

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: [2018] NZHC 3084
Decision Date: 26 November 2018

CaseChat Overview and Summary

The case of Billington v Morton concerns an appeal by Mr Billington against a costs judgment made by the Family Court, which was upheld by the High Court. Mr Billington sought to recall the High Court's judgment on the grounds that his counsel had filed a supplementary submission without his approval, and he believed that this submission, which contained what he considered to be significant facts, was not considered by the court. The first respondent, Ms Morton, opposed the application for recall, asserting that the supplementary submission was irrelevant to the costs appeal. The legal issues before the court were whether the supplementary submission was used in the costs appeal and, if not, whether the matters it contained were relevant to the costs appeal. The court found that the supplementary submission was not filed or used in the costs appeal. Furthermore, the court concluded that the matters raised in the supplementary submission, which pertained to the substantive proceedings, were not relevant to the costs appeal. The court dismissed the application for recall, noting that the matters raised did not reflect on the merits of the settlement in the High Court and would not have changed the outcome of the costs judgment. The court also considered awarding costs for the recall application, but expressed willingness to temper the costs if Mr Billington had no assets.

Orders