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 for some other very special reason justice requires that the judgment be recalled.

[7]The application in this case must be considered under the third category.

Decision

[8]    The essence of the application appears to be that the judgment did not accurately capture aspects of the factual and legal matrix behind the proceeding, and did not fairly reflect the respondents’ conduct. It seeks to clarify those matters.

[9]    The recall application is wide ranging. It contends that the judgment did not record or sufficiently take into account the following matters:

(a)the respondents sought “all available and appropriate relief or remedies”, including costs on an indemnity basis, in the District Court;

(b)that the appellant was advised by, and communicated through, his solicitor from the time he received the building inspector’s report;

(c)matters relating to the various settlement offers between the parties, and the District Court Judge’s consideration of those offers, including that the respondents’ lowest offer was actually “$3,800 plus GST (if any)”, not the $4,370 recorded in the judgment;

(d)that r 14.1 of the District Court Rules provides a general, overriding discretion as to costs;

(e)a range of factors which suggest the Judge did in fact turn his mind to r 14.6(4) of the District Court Rules when awarding indemnity costs;

(f)the appellant’s conduct in resisting disclosure of the building report, and that the categories of conduct justifying indemnity costs are not exhaustive;

(g)factual aspects of the case which distinguish it from the Supreme Court’s decision in Paper Reclaim Ltd v Aotearoa International Ltd;7

(h)information about the costs that were said to be incurred in the District Court proceeding, including that the respondents had offered to make available the underlying invoices supporting the claim for indemnity costs if the Court required them;

(i)the appellant’s position as to costs before the District Court; and

(j)that the appellant’s Calderbank offers were ineffective or cancelled each other out; and

(k)that the effect of the judgment of this Court is a significant departure from the costs outcome as determined by the District Court.

[10]   I do not consider any of the matters raised by the respondents justify recalling the judgment. The power of recall is not an invitation for parties to apply to rewrite judgments. Whether right or wrong, errors as wide-ranging and substantial as those the respondents point to must be corrected on appeal. The high threshold for recall — illustrated by the need for “very special” reasons — is grounded in the important principle of finality in litigation.8 That threshold is not met here.

[11]   Despite counsel’s argument to the contrary, many of the matters raised were clear attempts to relitigate matters determined in the judgment. That is evident from the fact that the recall application includes pinpoint references to the same arguments made in the respondents’ written submissions.

7      Paper Reclaim Ltd v Aotearoa International Ltd [2007] 3 NZLR 169.

8      Gibson v Official Assignee [2019] NZHC 532 at [21].

[12]   For those reasons, the application for recall is declined. The judgment must stand, for better or for worse, subject only to appeal.

Conclusion and result

[13]The application for recall is dismissed.

[14]   Mr MacKenzie submits the recall application was unmeritorious and Mr Blair should accordingly be awarded a 50 per cent uplift on 2B costs.9 I agree the application was unmeritorious. But given the disproportionate resources this dispute over costs has already absorbed, and the substantive award of costs already made in this Court, I decline to make an uplift.

[15]Costs are awarded on the recall application to Mr Blair on a 2B basis.

Isac J

Solicitors:
Maxwell Law, Lower Hutt for Appellant

9      Citing Erwood v Maxted, above n 4, at [23]. The Court of Appeal, concerned with the proliferation of unjustified recall applications, said: “the Court will consider ordering increased or indemnity costs against parties and/or counsel bringing unmeritorious applications”.