Body Corporate 172108 v Manchester Securities Limited (in liquidation)

[2022] NZHC 492

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001066

[2022] NZHC 492

BETWEEN

BODY CORPORATE 172108

Plaintiff

AND

MANCHESTER SECURITIES LIMITED (IN LIQUIDATION)

First Defendant

FLAT BUSH FINANCE LIMITED
Second Defendant

ROBERT JAMES CUMMINS, trustee of the MANCHESTER SECURITIES TRADING TRUST

Third Defendant

Hearing:	On the papers
Counsel:	T J G Allan and K M Wakelin for Plaintiff K P Sullivan for Third Defendant
Judgment:	17 March 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

[Recall Application]

This judgment was delivered by Associate Judge Andrew on 17 March 2022 at 4.00 pm

pursuant to r 11.3 of the High Court Rules Registrar / Deputy Registrar

Date …………………………

BODY CORPORATE 172108 v MANCHESTER SECURITIES LTD (IN LIQ) & ORS [2022] NZHC 492 [17

March 2022]

Introduction

[1]    The third defendant, Mr Cummins, seeks a recall of my costs judgment of   15 February 2022.1

[2]    The application is made in reliance of the third limb of the test case Horowhenua County v Nash.2 It is contended that I did not have key documents and information before me when making my costs judgment.

Relevant legal principles

[3]    The third limb of Horowhenua County v Nash is where “for some other very special reason justice requires that the judgment be recalled”.3 This third component of Horowhenua has been explained by the High Court,4 which has been upheld by the Court of Appeal,5 to mean:

While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular, there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.

Decision

[4]    I find that Mr Cummins has failed to demonstrate a proper basis for a recall of my judgment. At best, his arguments might be seen to constitute arguable grounds of appeal. However, it is clear that the power of recall does not extend to a challenge to substantive findings of fact and law. As noted above, the discretion to recall is to be exercised with circumspection. There is no basis to do so here.

[5]    I see little merit in the argument that the discontinued proceeding was withdrawn by order of the Court and re-issued as a separate proceeding. It is clear

1      Body Corporate 172108 v Manchester Securities Ltd (in liq) [2022] NZHC 184.

2      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).

3      Horowhenua County v Nash (No 2), above n 2, at 633.

4      Faloon v Commissioner of Inland Revenue (2006) NZTC 19832 (HC) at [13].

5      Rogan v Kaipara District Council [2018] NZCA 553 at [11].

from the minute of Brewer J of 12 November 2021 that costs might be an issue. His Honour specifically directed that submissions be filed to address that point if there was no agreement.

[6]    The argument that His Honour Brewer J should have dealt with the costs issue is equally without merit. As counsel for the Body Corporate submitted, the argument is unreal and does not reflect practice.

[7]    It may be that my costs judgment does not accurately record the terms of Gwyn J’s orders in upholding the caveat – i.e. the order was made upholding the caveat pending further order of the Court rather than (as I recorded it) pending a determination of the substantive dispute. However, that mistake is of no consequence.

[8]    I also reject the contention that my costs judgment may have pre-judged the substantive matter currently before van Bohemen J. I determined the costs issue on the papers and my findings about wasted costs and a pattern of conduct are based on a substantial number of previous findings of this Court. It is unreal to suggest that my costs judgment could have any bearing on the matters before van Bohemen J.

[9]    For all these reasons I reject the recall application. The application to recall is dismissed.

[10]There will be no order for costs.

Associate Judge P J Andrew