Chin (Payne) v Payne - [2022] NZHC 3284

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-000350

[2022] NZHC 3284

BETWEEN
SANDRA CHIN (PAYNE)

Plaintiff

AND

STEVEN PAYNE as the executor of the estate of Donald Gordon Payne

First Defendant

AND

STEVEN PAYNE

Second Defendant

Hearing: 6 December 2022

Appearances:

P R W Chisnall and D P MacKenzie for the Plaintiff G E Sleven for the First Defendant

B J J Sheehan and S D Balloch for the Second Defendant

Judgment:

14 December 2022

DECISION OF GENDALL J

[1] On 24 November 2022 I gave a judgment in this proceeding and at paragraphs
[114] – [116] addressed the issue of costs. As to costs, I granted category 3(c) scale costs to the largely successful plaintiff, together with reasonable disbursements all as approved by the registrar, with such costs and disbursements to be met by the estate of Donald Gordon Payne.

[2] On 2 December 2022 counsel for the first defendant and the second defendant filed a joint memorandum seeking re-call of my 24 November 2022 decision relating in particular to this award of costs.

SANDRA CHIN (PAYNE) v STEVEN PAYNE as the executor of the estate of Donald Gordon Payne [2022] NZHC 3284 [7 December 2022]

[3] In response, counsel for the plaintiff has filed a memorandum dated 5 December 2022 opposing the request for re-call.

[4] Although a request to re-call a judgment is often made by formal interlocutory application, as a minimum often a formal memorandum requesting re-call will on occasions suffice. I accept the joint memorandum filed on behalf of the first and second defendants is acceptable here.

[5] So far as any application for re-call is concerned, Rule 11.9 of the High Court Rules 2016 addresses this. The leading statement on re-call of judgments in New Zealand remains that of Wild CJ in Horowhenua County v Nash (No 2)1:
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 re-called –- the first, where since the hearing there has been an amendment to a relevant statute or regulation, or a new judicial decision of relevance at high authority; secondly, where counsel have 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 re-called.

[6] Here, it is apparent the application by the first and second defendants can only fall within the third limb noted above, requiring that “some other very special reason” exist.

[7]On that aspect, Asher J in Faloon v CIR (Commissioner of Inland Revenue)2

said:

While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to re-call must be exercised with circumspection, and it must not in…

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.

Continue reading Chin (Payne) v Payne

Details

AGLC: Chin (Payne) v Payne [2022] NZHC 3284
Case: [2022] NZHC 3284
Decision Date: 14 December 2022

CaseChat Overview and Summary

The case of Sandra Chin (Payne) v Steven Payne as the executor of the estate of Donald Gordon Payne [2022] NZHC 3284 involved a dispute between the plaintiff, Sandra Chin, and the defendants, Steven Payne as the executor of the estate of Donald Gordon Payne and Steven Payne as the second defendant. The plaintiff sought a re-call of the earlier judgment which awarded category 3(c) scale costs to her, together with reasonable disbursements, to be met by the estate of Donald Gordon Payne. The defendants filed a joint memorandum seeking re-call of the judgment, which the plaintiff opposed. The primary issue for the court was whether the defendants' application for re-call could be accepted under the third category of cases mentioned in Horowhenua County v Nash (No 2), which allows for a judgment to be re-called for "some other very special reason."

The court considered the application for re-call and noted that the defendants' request could only fall within the third limb of the criteria, requiring a "very special reason." The court observed that the power to re-call a judgment does not extend to re-litigating matters already considered, challenging substantive findings of fact and law, or presenting new arguments that could have been raised previously. The court found that the defendants' application was, in effect, an attempt to re-litigate the costs issue and challenge the substantive findings of fact and law, which is not permissible under the re-call provisions. The court further noted that the plaintiff had specifically sought costs in her statement of claim and during the closing submissions, making it appropriate for the costs to be paid from the estate.

The court dismissed the defendants' application for re-call, stating that any dissatisfaction with the judgment should be addressed through an appeal to the Court of Appeal. The court declined the plaintiff's request for an order for costs against the defendants on the re-call application, emphasizing the need for the Payne family to move forward.

Orders