Calibre Financial Services Ltd v Mortgage Administration Services (Calibre) Ltd

[2013] NZCA 565

IN THE COURT OF APPEAL OF NEW ZEALAND

CA538/2012
[2013] NZCA 565

BETWEEN

CALIBRE FINANCIAL SERVICES LIMITED
Appellant

AND

AND

MORTGAGE ADMINISTRATION SERVICES (CALIBRE) LIMITED
First Respondent

CAIRNS LOCKIE LIMITED (IN LIQUIDATION)
Second Respondent

Court:

Harrison, White and Priestley JJ

Counsel:

P L Rice and N H Robertson for Appellant
S O McAnally for First Respondent

Judgment:

(On the papers)

15 November 2013 at 2.30 pm

JUDGMENT OF THE COURT

A        The application for recall is dismissed.

BThe first respondent is to pay the appellant’s actual costs and disbursements reasonably incurred.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

1. On 21 October 2013 this Court allowed an appeal by Calibre Financial Services Ltd against a judgment given by Peters J in the High Court in favour of the first respondent, Mortgage Administration Services (Calibre) Ltd.[1]  The effect of the judgment was to restore a decision given by Judge Alison Sinclair in the District Court at Auckland adjudging Mortgage Administration liable to Calibre for the sum of $41,888.89.[2] 

   [1]Calibre Financial Services Ltd v Mortgage Administration Services (Calibre) Ltd [2013] NZCA 503; Mortgage Administration Services (Calibre) Ltd v Calibre Financial Services Ltd [2012] NZHC 732.

   [2]Calibre Financial Services Ltd v Mortgage Administration Services (Calibre) DC Auckland CIV‑2009-004-3175, 31 May 2011.

2. On 22 October 2013, the day after judgment was delivered, Mortgage Administration applied for an order recalling the judgment.  The ground on which it relied was that this Court had failed to consider two additional grounds advanced in support of the High Court judgment, constituting a special reason requiring recall. 

3. Mr Rice for Calibre has filed a memorandum in opposition pointing out, among other things, that a Court’s omission to answer each and every argument raised by counsel does not justify a recall.  In giving its reasons for judgment, the Court is not bound to discuss every aspect of argument.[3]  With respect, the reason for that principle is obvious.  The ultimate question is whether the decision is correct: if the decision is incorrect, the losing party is entitled to apply for leave to appeal.  Mortgage Administration has that right here.

   [3]R v Nakhla (No 2) [1974] 1 NZLR 453 (CA) at 456.

4. Moreover, a period of measured reflection would have shown Mortgage Administration that the issues which it now says were not considered were in fact considered; and that, even if they had been addressed in more detail, the result would have been the same. 

5. Mortgage Administration’s application is one of an unnecessary proliferation of misconceived applications to recall.  Parties have been on notice since this Court’s decision in Erwood v Maxted that they are at risk of orders for increased or indemnity costs where an application for recall is without merit.[4]   This is such a case.

   [4]Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23].

6. Mortgage Administration’s application is dismissed and it is ordered to pay Calibre’s actual costs and disbursements reasonably incurred together with usual disbursements under r 53E(3) of the Court of Appeal (Civil) Rules 2005.

Solicitors:
Sanderson Weir, Auckland for Appellant
Keegan Alexander, Auckland for First Respondent