Body Corporate 172108 v Meader
[2024] NZHC 1893
•12 July 2024
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 [108] omits to record that the alternatives proposed by Sage were raised following an invitation of Powell J made orally to counsel during the hearing to the effect that counsel should consider and
1 Body Corporate 172108 v Meader & Ors [2024] NZHC 1280 [judgment].
present alternative options for variations to the scheme with a view to achieving some finality.
[4] The applicant, Body Corporate 172108 (“Body Corporate”), generally opposes the application for recall save that it submits that in relation to item [3](a), relating to para [10] of the judgment, the word “any” could be replaced by “all”. Manchester abides the decision of the Court.
[5] The application filed by Sage also sought leave to appeal the judgment and to stay enforcement of costs orders. The application for leave has been dealt with by way of separate judgment. The application to stay the costs orders is premature given costs have yet to be determined, the Court having recently granted an extension of time for the filing of submissions on costs.2
Legal Principles
[6] There is no dispute as to the applicable principles for recall. Under r 11.9 of the High Court Rules 2016:
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.
[7] Recall is a serious step to be taken only in reasonably well identified situations.3 In particular, it must not be in any way seen as a substitute for an appeal4 or an opportunity to re-open substantive matters already decided.5 Likewise, recall does not extend to a challenge of substantive findings of fact in the judgment.6
[8]There are generally three categories in which a judgment can be recalled:7
(a)if there has been an amendment to a relevant statute or regulation, or a new judicial decision of relevance and high authority;
2 Body Corporate 172108 v Meader & Ors HC Auckland CIV-2009-404-6868/CIV-2019-404-1445, 17 June 2024 (Minute).
3 Jason Bull (ed) McGechan on Procedure (online ed, Thomson Reuters) at [HHR11.9.01(1)].
4 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [5], quoting with approval Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13].
5 Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [11]–[13].
6 Zhang v Yu [2020] NZCA 592 at [9].
7 Horowhenua County v Nash (No.2) [1968] NZLR 632 (SC) at 633; and 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 the judgment to be recalled.
[9] It is the third category that Sage relies on in this case. However, as the Court of Appeal has noted:8
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…
Discussion
[10] Having considered the application for recall and supporting submissions against what I said in the paragraphs at issue in the judgment, I agree with Mr Orpin-Dowell that the present application for recall “is an attempt to challenge substantive findings of fact and to reprise an argument already rejected”.
[11] As Mr Orpin-Dowell has noted, the comment at para [10] of the judgment objected to by Sage was my conclusion, reached after consideration of the evidence presented by Sage, as well as the wider circumstances. It takes into account not only Mr McGaveston’s evidence but the evidence that without further funding (including any contribution by the Body Corporate as sought by Manchester and Sage in the substantive hearing), after Sage withdrew its support, the 12th floor remains unfinished and cannot presently be sold for anything approaching its value. Such monies as can be presently recovered, as Mr McGaveston acknowledged, are likely to have to be paid to the Body Corporate, further reducing the likelihood of any recovery on the part of Sage. Any challenge to my conclusion is clearly a matter for appeal.
8 Erwood v Maxted, above n 7, at [5], quoting with approval Faloon v Commissioner of Inland Revenue, above n 7, at [13].
[12] Similarly, the use of the phrase “aided and abetted” in para [11], in the context of the judgment, clearly had no criminal connotation whatsoever. Rather, as Mr Orpin- Dowell submitted (and equally applicable to [109]), the phrase simply reflected the fact that Manchester’s failure to complete the remediation notwithstanding the significant sums expended had been enabled by Sage’s conduct. This was not controversial as Mr Haig in fact submitted in his opening at the substantive hearing the only reason Manchester had “been able to go as far as it has is because of the support of the private financier Sage”. Mr Haig indeed went on to observe “private owners of apartments don’t tend to have the ability to raise that kind of money and…coordinate a project like this, which Manchester has endeavoured to do.”
[13] These issues were all discussed in detail with Mr Haig at the substantive hearing both in opening and closing. I acknowledge that Mr Haig challenged my interpretation of the evidence by way of his submissions, as was entirely appropriate. Mr Haig did not persuade me, however, nor did the additional affidavit evidence provided by Mr McGaveston filed at the conclusion of the substantive hearing.
[14] I likewise do not accept that para [48] of the judgment contains an error. As I explained in the paragraph, notwithstanding that both the Body Corporate and Manchester had referred in the course of the hearing to their applications as “variation applications”, my interpretation of the primary relief that each was seeking was declarations as to the effect of the scheme.9 I therefore referred to the applications as “cross-applications”. This indeed was a point of difference between Manchester and Sage, as noted by Mr Haig at the outset of his opening submissions at the substantive hearing when he acknowledged Manchester’s arguments with regard to the effect of the Fogarty variation judgment10 and variation appeal judgment11 was that an effective cap on Manchester’s liability was removed,12 whereas Sage’s submission was that a variation was required to take the scheme back to that scheme approved by Heath J in 2010 if the Court did not simply terminate the scheme so that the Unit Titles Act 2010 applied.
9 For example, see judgment, above n 1, at [4](a) and [50]–[51] in particular.
10 Body Corporate 172108 v Manchester Securities Ltd [2017] NZHC 329.
11 Manchester Securities Ltd v Body Corporate 172108 2017 NZCA 527, (2017) NZCPR 65.
12 See judgment, above n 1, at [51]–[56].
[15] The last basis for recall in Sage’s submission is that I omitted from para [108] of the judgment any acknowledgement that the issues addressed at that point in the judgment had been raised at my invitation.
[16] I acknowledge that I said to counsel on a number of occasions during the course of the substantive hearing that I would be assisted by any innovative solution so as to bring finality to the matters at issue. However, it is clear that, as Mr Orpin-Dowell has submitted, both of the issues dealt with at this point in the judgment were in fact raised in the course of Mr Haig’s opening submissions when he made it clear that Sage’s position differed somewhat from that of Manchester.
[17] In any event, and as noted in the judgment, while I addressed Sage’s position on those issues on their merits I did have to take into account the fact that Sage’s proposals were not the result of a formal application, and that, as a result, the non-participating parties in the proceeding had not had the opportunity to consider the matters now raised.
[18] For the reasons set out above I am satisfied that none of the matters raised by Sage fall within any of the recognised categories appropriate for recall.
Decision
[19]The application for recall is dismissed.
[20] The Body Corporate is entitled to costs on the application to recall. The issue of costs on the recall application is to form part of the parties’ submissions on costs and will be dealt with at the same time as costs on the substantive judgment.
Powell J
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