Blair v Street - [2022] NZHC 1476

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CIV-2021-485-743

[2022] NZHC 1476

IN THE MATTER of an award of costs made in the District Court

BETWEEN

ANDREW DOUGLAS BLAIR

Appellant

AND

MICHAEL JOHN STREET, JOAN ISABELLA STREET, PHILIP JOHN ENGLAND AND CHRISTOPHER JOHN STREET

Respondent

Hearing: On the papers

Appearances:

D P MacKenzie for Appellant R K Macdonald for Respondent

Judgment:

22 June 2022

JUDGMENT OF ISAC J

[Application for recall]

Introduction

[1] In a judgment of 8 June 2022,1 I allowed an appeal by Mr Blair against a decision of the District Court in which indemnity costs of $13,581 were awarded to the respondents.2 I set aside that decision and awarded the respondents costs on a 2A basis in the District Court.

1 Blair v Street [2022] NZHC 1344 (the judgment).
2 Street v Blair [2021] NZDC 20771.

BLAIR v STREET, STREET, ENGLAND AND STREET [2022] NZHC 1476 [22 June 2022]

[2] On 9 June 2022, Mr Macdonald emailed the Court requesting a range of amendments to the judgment under the slip rule.3 I considered the matters raised went well beyond the scope of the slip rule and declined the request.

[3] Subsequently, by memorandum of 15 June, the respondents sought recall of the judgment on the basis that it failed to address a range of matters they say ought to have been.

[4] Mr Blair opposes recall. He says the application is really an attempt to relitigate matters already determined by this Court and does not meet the appropriate threshold. The appropriate course to correct any error in the judgment is by way of appeal.

Relevant law

[5]Rule 11.9 of the High Court Rules provides:

11.9 Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed

[6] The principles governing recall are well settled. The discretion to recall must be exercised with circumspection and must not in any way be seen as a substitute for an appeal,4 or an opportunity to re-open substantive matters already decided.5 There are three categories of case in which an unperfected judgment may be recalled, namely:6

(a)where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority;

3      High Court Rules 2016, r 11.10.
4      Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13], approved in
Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [5].
5      Nottingham v Real Estate Agents Authority [2017] NZCA 145.
6      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 per Wild CJ, applied in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

(b)where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and

(c)where…

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.

Continue reading Blair v Street

Details

AGLC: Blair v Street [2022] NZHC 1476
Case: [2022] NZHC 1476
Decision Date: 22 June 2022

CaseChat Overview and Summary

The respondents sought recall of a judgment of the High Court of New Zealand, Wellington Registry, which allowed an appeal by Andrew Douglas Blair against a decision of the District Court in which indemnity costs of $13,581 were awarded to the respondents. The respondents contended that the judgment did not accurately capture aspects of the factual and legal matrix behind the proceeding, and did not fairly reflect their conduct. They sought to clarify matters including the settlement offers between the parties, the District Court Judge's consideration of those offers, and the appellant's conduct in resisting disclosure of the building report. The court considered the relevant law governing recall, which provides that the discretion to recall must be exercised with circumspection and not seen as a substitute for an appeal or an opportunity to re-open substantive matters already decided. The court declined the recall application, finding that the matters raised were attempts to relitigate matters already determined by the Court and did not meet the appropriate threshold. The court held that the high threshold for recall, illustrated by the need for "very special" reasons, is grounded in the important principle of finality in litigation. The court declined to make an uplift on costs, given the disproportionate resources the dispute over costs had already absorbed.

The court awarded costs on the recall application to Mr Blair on a 2B basis. The application for recall was dismissed, and the judgment must stand, for better or for worse, subject only to appeal. The appropriate course to correct any error in the judgment was by way of appeal.

Orders