Body Corporate 172108 v Meader - [2024] NZHC 1893

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2009-404-6868

[2024] NZHC 1893

BETWEEN
BODY CORPORATE 172108

Applicant

AND

MEADER & ORS

(MANCHESTER SECURITIES LIMITED) 37TH RESPONDENT

CIV-2019-404-1445

BETWEEN

BODY CORPORATE 172108

Applicant

AND

MANCHESTER SECURITIES LIMITED

Respondent

Hearing: On the papers at Auckland

Appearances:

J B Orpin-Dowell and T J G Allan for Applicant

K C Francis for 37th Respondent (Manchester Securities Ltd (in liquidation))

J D Haig for 43rd Respondent (Sage Securities Ltd)

Judgment:

12 July 2024

JUDGMENT (NO.5) OF POWELL J

[Application to recall]

This judgment was delivered by me on 12 July 2024 at 4.00 pm.
Pursuant to R 11.5 of the High Court Rules.
…………………..
Registrar/Deputy Registrar

BODY CORPORATE 172108 v MEADER & ORS [2024] NZHC 1893 [12 July 2024]

[1]I issued judgment in these proceedings on 23 May 2024 (“the judgment”).1

[2] The 43rd respondent in proceeding CIV-2009-404-6868, Sage Securities Limited (“Sage”) has applied to recall the judgment. The application seeks the amendment and/or correction of a number of discrete paragraphs which Sage submitted included “unintended adverse inferences” about Sage”, contained an error and/or contained an omission.

[3]Specifically, Sage contends that the judgment should be recalled because:

(a)The concluding words of paragraph [10]: “... with the result that Sage's only hope to recover any of the monies advanced to [Manchester Securities Limited (In Liquidation) (“Manchester”)] is through supporting Manchester's claims for contribution against the Body Corporate and the other owners of the building." give rise to an unintended adverse inference that the motivation of Sage in taking an opposing position to the Body Corporate's application to vary the scheme was only to recover sums lent on its mortgage, and not to protect its position generally in the face of the disadvantageous orders sought by the Body Corporate.

(b)The phrase in [11] “... aided and abetted by Sage, ...” is an expression used in criminal law for third parties who assist crimes and is pejorative to Sage.

(c)The final sentence of [109]: “The fact Sage has continued to support Manchester unconditionally has meant that it has actively contributed to the present unsatisfactory situation whereby the repairs to level 12 have not been completed, notwithstanding the amounts provided.” carries an adverse inference that Sage had intended in some way to bring about the situation where level 12 repairs had not been completed.

(d)Despite the Body Corporate serving a notice to cross-examine Sage's director Mr McGaveston, that was withdrawn. Consequently, Mr McGaveston did not appear and could not comment on the adverse inferences, in breach of the rules of natural justice

(e)At paragraph [48] the “primary relief” sought by the Body Corporate was noted to be declarations under the scheme. That was an error in that in the Body Corporate's amended interlocutory application for injunction and variation of scheme dated 3 April 2019 the first order sought at [1](a) was for an order to amend the scheme under section 48 of the Unit Titles Act 1972 (UTA).

(f)Paragraph…

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: [2024] NZHC 1893
Decision Date: 12 July 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, Body Corporate 172108 filed an application against Manchester Securities Limited, with Sage Securities Limited also involved as a respondent. The dispute revolves around an application to recall a judgment issued on 23 May 2024, which was contested by Sage Securities Limited. Sage sought to amend and/or correct several discrete paragraphs of the judgment, alleging they contained unintended adverse inferences, errors, and omissions. The specific issues Sage raised included the concluding words of paragraph [10], the phrase "aided and abetted" in paragraph [11], the final sentence of paragraph [109], the absence of cross-examination of Sage's director, an alleged error in paragraph [48], and an omission in paragraph [108].

The legal issues before the court were whether the judgment could be recalled under Rule 11.9 of the High Court Rules 2016, which allows a judge to recall a judgment before it is formally recorded and sealed. The court examined whether Sage's application fell within any of the recognized categories for recall, such as amendments to statutes, new judicial decisions, or special reasons of justice. Powell J concluded that Sage's application was an attempt to challenge substantive findings of fact and law, which is not permissible under the recall provisions. The court found that the contested paragraphs reflected the judge's conclusions based on the evidence presented and did not constitute errors or omissions warranting recall. Powell J dismissed the application for recall and awarded the Body Corporate costs for the recall application, to be determined alongside the costs for the substantive judgment.

Orders