Cap D'Amarres Residents' Association Incorporated v Edwards
[2012] NZHC 2797
•24 October 2012
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2011-404-006434 [2012] NZHC 2797
BETWEEN CAP D'AMARRES RESIDENTS' ASSOCIATION INCORPORATED First Plaintiff
ANDALAN FLITCROFT AND CHRYSTINE FLITCROFT
Second Plaintiffs
ANDIAN CLARENCE JONES, SHIRLEY GWENDOLINE JONES AND SHALE CHAMBERS
Third Plaintiffs
ANDSIMON JEREMY REI EDWARDS, KIT PING TANG AND CST TRUSTEES LIMITED
First Defendants
ANDDAVID DONALD MORGAN, GLENNIS DOREEN MORGAN AND SPICERS TRUSTEES COMPANY (2005) LIMITED Second Defendants
ANDJOHN WINTER, ANNA KARIN ELISABETH WINTER AND AUCKLAND TRUSTEES & EXECUTORS LIMITED
Third Defendants
Hearing: On the papers
Judgment: 24 October 2012
JUDGMENT OF GILBERT J [on recall application]
This judgment was delivered by me on 24 October 2012 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:
CAP D'AMARRES RESIDENTS' ASSOCIATION & ORS V EDWARDS & ORS HC AK CIV 2011-404-
006434 [24 October 2012]
Counsel: M von Dadelszen, Hastings [email protected]
Solicitors: Lee Salmon Long, Auckland: [email protected]
Buddle Findlay, Wellington: [email protected] [email protected]
Glaister Ennor, Auckland [email protected]
Introduction
[1] This judgment deals with separate applications by the plaintiffs and the defendants for recall of my judgment delivered on 29 August 2012 in which I declined to rescind an interim injunction granted by Peters J and also declined to join a third party to the proceeding.[1]
Background
[1] Cap d’Amarres Residents’ Association Inc v Edwards [2012] NZHC 2204.
[2] Cap d’Amarres is a gated residential precinct at Gulf Harbour. The second defendants, the Morgans, own an undeveloped lot at Cap d’Amarres that has two adjacent marina berths. Like other owners, they were issued with a remote control which operates the main gate to the precinct. The first plaintiff, the CAP Association, disabled the Morgans’ remote control because of its concern that the remote was being used by one of the Morgans’ marina berth sublicensees, Mr Bakker, and his invitees to gain vehicular and pedestrian access to Cap d’Amarres. The Association considered that this was a breach of its rules which justified them deactivating the remote control.
[3] Peters J granted an interim injunction requiring the CAP Association to reactive the Morgans’ remote control so that the Morgans’ sublicensees could have vehicular and pedestrian access to their property.[2] However, she ordered that no more than two cars could be parked on their property at any one time. This was to enable each of the Morgans’ sublicensees to park one car on the lot at any time.
[2] Cap d’Amarres Residents’ Association Inc v Edwards HC Auckland CIV 2011-404-006343
23 December 2011.
[4] The second and third plaintiffs, who own developed lots in the precinct, applied to rescind the injunction on the basis that the berth sublicence agreements are invalid and, in any event, prohibit sublicensees from parking in the precinct. They also argued that the CAP Association rules prohibit sublicensees and their invitees from having access and also prohibit more than one vehicle being parked in the open
on any lot at any one time.
[5] I found that the sublicense agreements entered into by the Morgans with their sublicensees were invalid but that the sublicensees and their invitees were arguably entitled to vehicular access to Cap d’Amarres so long as they were all invitees of the Morgans. I rejected the plaintiffs’ argument that the CAP Association rules prohibit more than one vehicle being parked in the open on any one lot at any given time. I declined to rescind the interim injunction. I also declined the plaintiffs’ application to join the Gulf Harbour Marine Village Residents’ Society Incorporated (the Village Association) as a party to the proceeding.
[6] The plaintiffs apply under r 11.9 of the High Court Rules for recall of the judgment. They contend that I failed to determine two issues that were properly put to the Court in support of their contention that there was no serious issue to be tried and therefore no basis for the interim injunction:
(a) The Morgans’ remote control was being used in breach of the CAP Association rules because their sublicensees were inviting their own invitees and granting them access to Cap d’Amarres using the remote control; and
(b)The Morgans’ sublicensees’ right to “full use” of the Cap d’Amarres’ Common Facilities meant full use consistent with the rights granted by the Morgans under the sublicense agreements. These agreements limited the sublicensees’ rights to pedestrian access to the precinct.
[7] The plaintiffs submit that the judgment should be recalled and the injunction granted by Peters J rescinded on these grounds.
[8] The plaintiffs also apply for recall of the judgment refusing joinder of the Village Association. They argue that I overlooked that in their fourth counterclaim the defendants have sought a declaration that all berth sublicensees are entitled to vehicular access to Cap d’Amarres. The plaintiffs submit that the Village Association needs to be a party to enable this dispute to be determined and that the judgment should be recalled and an order for joinder made.
[9] The defendants oppose the plaintiffs’ application to recall the judgment. However, they make their own application for recall on the basis that the judgment did not deal with their application for orders disqualifying Mr Barker and Buddle Findlay from acting for the second and third plaintiffs and the Village Association.
Legal principles
[10] A judgment will only be recalled in exceptional circumstances for the reasons explained by Wild CJ in Horowhenua County v Nash (No.2):[3]
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation of a new judicial decision of relevance and high authority; secondly, where counsel has failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.
[3] Horowhenua County v Nash (No.2) [1968] NZLR 632 (HC) at 633..
[11] These criteria must be strictly applied.[4] The third category, permitting recall where justice requires this for some “very special reason”, is a narrow one applying only in exceptional cases. Examples are where an issue properly put to the Judge has not been determined[5] or has been overlooked.[6] The recall procedure does not afford the parties an opportunity to re-litigate the case.
The plaintiffs’ application to recall the judgment and rescind the interim
injunction
[4] Erwood v Maxted [2010] NZCA 1993 at [23].
[5] Brake v Boote (1991) 4 PRNZ 86 (HC).
[6] Matua Finance Ltd v Bank of New Zealand HC Auckland CP490/04, 4 August 1995.
[12] The first argument advanced by the plaintiffs in support of their recall application relies on their contention that invitees of the Morgans’ sublicensees gained vehicular access to Cap d’Amarres. They argue that this was a breach of the
CAP Association rules justifying the deactivation of the Morgans’ remote control.
[13] I addressed this issue in my judgment. I concluded that only invitees of owners were entitled to access to Cap d’Amarres and that invitees of sublicensees were not entitled to such access unless they were also invitees of an owner.[7] Despite this, I considered that the Morgans had an arguable case that their rights had been infringed when their remote control was deactivated thus preventing them and their invitees from gaining vehicular access to Cap d’Amarres. I therefore concluded that the injunction should not be rescinded. If the plaintiffs disagree, they should appeal. I do not consider that the first issue raised by the plaintiffs provides any proper basis
for recalling the judgment.
[7] At [26].
[14] The second argument raised by the plaintiffs on their recall application is based on their contention that the Morgans only granted access rights to their sublicensees under the sublicense agreements and that these agreements do not allow vehicular access. I also addressed this issue in my judgment. My tentative conclusion was that the sublicense agreements were intended to prohibit vehicular access but that the Morgans’ sublicense agreements were not valid. However, I considered that the sublicensees were arguably entitled to vehicular and pedestrian access to Cap d’ Amarres under the CAP Association rules as invitees of the Morgans. I am not prepared to recall the judgment on the basis of this argument.
The plaintiffs’ application to recall the judgment and join the Village
Association
[15] The plaintiffs submit that I overlooked the relief sought by the defendants in their fourth counterclaim when deciding that the Village Association should not be joined to the proceeding. The fourth counterclaim is based on advice allegedly given by the CAP Association on 18 November 2011 “that it is likely that all remote controls of non-residents will have its vehicular gate access disabled”. The defendants have sought a declaration “that all remote controls of owners and/or their Invitees/Renters are to have full vehicular and pedestrian access unless there are rules passed in accordance with the Constitution of the Association to the contrary
which are intra vires”. The plaintiffs contend that the Village Association has a legal
interest in the outcome of this counterclaim which they say involves the interpretation of the berth sublicense agreement.
[16] The Village Association and the plaintiffs argued that the berth sublicense agreements are not valid. I agreed. In these circumstances, I considered that access rights to Cap d’Amarres were to be determined on the basis of the CAP Association Rules, not the sublicense agreements and that it was therefore not necessary for the Village Association to be joined as a defendant. I am not prepared to recall my judgment on joinder.
The defendants’ application to recall the judgment
[17] The defendants seek recall of the judgment on the basis that it does not deal with an application they made for an order disqualifying Mr Barker and Buddle Findlay from acting in the proceeding for the second and third plaintiffs and the Village Association.[8] The defendants argued that separate legal representation was required for the CAP Association, the second and third plaintiffs and the proposed non-party, the Village Association.
[8] Defendants’ amended interlocutory application dated 7 June 2012 for orders pursuant to r 1.20 at
[1(c)].
[18] Buddle Findlay are not acting for the CAP Association. Having declined to join the Village Association, Mr Barker and Buddle Findlay will not be acting in the proceeding for the Village Association, only for the second and third plaintiffs. Accordingly, the basis for the defendants’ application fell away and no order was made. I am not prepared to recall the judgment on this basis either.
Result
[19] The plaintiffs’ application for recall of my judgment is dismissed.
[20] The defendants’ application for recall of my judgment is also dismissed.
[21] Both applications have failed. However, if any party seeks costs on the recall applications, they should do so by memorandum filed and served within 14 days of
the date of this judgment. Any memorandum in response should be filed and served
within 14 days thereafter.
M A Gilbert J
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