Churchill Group Holdings Limited v Aral Property Holdings Limited HC Auckland CIV 2001-404-2302

[2009] NZHC 2563

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2001-404-002302

BETWEEN  CHURCHILL GROUP HOLDINGS LIMITED

First Plaintiff

ANDCACHINAL INVESTMENTS LIMITED Second Plaintiff

ANDMATAM INVESTMENTS LIMITED Third Plaintiff

ANDCLEVELAND INVESTMENTS LIMITED Fourth Plaintiff

ANDARAL PROPERTY HOLDINGS LIMITED

First Defendant

ANDDAVID LEUNG Second Defendant

Hearing:         7 April, 21 April and 29 May 2009

Counsel:         Josh McBride for Defendants

Philip Fava in person
No appearance for Plaintiffs
No appearance for Tony John Thomas or Mr Yee

Judgment:      20 August 2009 at 3:00pm

RESERVED JUDGMENT OF HUGH WILLIAMS J.

This judgment was delivered by The Hon. Justice Hugh Williams on 20 August 2009 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

……………………………………………..

Registrar/Deputy Registrar

CHURCHILL AND ORS V ARAL PROPERTY HOLDINGS LIMITED AND ANOR HC AK CIV-2001-404-

002302  20 August 2009

Mr Fava is granted leave to file his application to re-call the 24 March 2009 judgment out of time but his application is dismissed.

Introduction

[1]      An oral decision delivered on 24 March 2009 dismissed an application by Mr Fava  under  r  9.75  -  one  of  those  against  whom  an  order  for  increased  or indemnity costs is sought in this proceeding - for an order directing Mr Simpson, a partner in Bell Gully, the defendants’ firm of solicitors, to attend before the Court for the purpose of being cross-examined and to produce documents.

[2]      On 1 April 2009, two days after the costs hearing concluded and the decision was reserved, Mr Fava applied for an order either re-calling the r 9.75 judgment of

24 March 2009 or varying or rescinding the order.  He filed an amended application on 6 April 2009 for the same orders but relying on different affidavits and filed a further amended application on 17 April 2009 amending the grounds on which the orders  were  sought  and  the  affidavits  relied  on.    The  principal  addition  in  the

17 April 2009 application was an assertion that on 27 March 2009 an affidavit sworn by Mr Fava attaching a confidential statement by an important witness in the substantive  hearing,  Mr  Chong,  was  filed  and  served  and  that  the  putting  of Mr Chong’s statement before the Court :

... makes it plain, absent some exculpatory information from Mr Simpson, that on 16 June 2003 Mr Simpson deliberately misled the Court and ... the Court has before it a proven concoction allegation [which] ... if proven has profound implications for the defendants’ costs application.

[3]      Because it was initially thought the application could be disposed of in a fairly brief hearing, it was originally set down to be heard at 9:00am on 7 April 2009. It was, however, adjourned from that date to 21 April to enable Mr Fava to consult Mr Judd QC, senior counsel for the plaintiffs in the substantive hearing.   Even on

21 April it was still thought the application required only relatively brief argument and it was thus set down at 9.00 a.m. when Hugh Williams J was sitting in the Criminal Appeal Division at Auckland.   However, it rapidly became apparent the

argument was significantly more extensive than originally expected.   The hearing was accordingly completed during a one day hearing on 29 May 2009.

[4]      That notwithstanding, on 2 June 2009 Mr Fava filed two further large bundles of documents described as “My Practical Demonstration” of some of the issues he had dealt with during the hearing.

Judgment of 24 March 2009

[5]      To  set  the  scene  for  this  judgment,  it  is  pertinent  to  recount  the  salient features of the judgment of which re-call is sought.

[1] This judgment deals with an application by Mr Fava, one of those against whom an order for increased indemnity costs is sought, under r 9.75 for an order directing that Mr Simpson, a partner in the defendants’ firm of solicitors, attend before the Court for the purpose of being cross-examined and to produce documents.

...

[6] In an amended application dated 16 December 2008, the defendants set out the grounds on which they say they are entitled to increased or indemnity costs.  The grounds most in contention in relation to the r 9.75 application are grounds 6 (f) and (g):

6.  The  defendants  are  entitled  to  indemnity  costs  against  the plaintiffs.  The plaintiffs acted vexatiously, frivolously, improperly, and unnecessarily in commencing and continuing this proceeding and abused the processes of the Court. In particular:  ...

(f) The defendants (and Mr Leung in particular) suffered considerable stress, anxiety and humiliation occasioned by having to publicly defend the serious allegations of deceit, criminal wrongdoing and perjury.  In the course of pursuing this proceeding, Mr Fava repeated the allegations of misconduct   to   a   number   of   business   associates   of Mr Leung’s, including Dr Sohmen and HSBC.  Mr Yee also repeated these allegations as solicitor for the plaintiffs in correspondence with Bell Gully.   These allegations were made as part of a deliberate strategy, adopted for the purpose of bringing unfair pressure to bear on the defendants to agree to  a  settlement  on  terms  that  were  favourable  to  the plaintiffs.

(g) Three of the plaintiffs’ interlocutory applications (being the application for rescission of order for security for costs dated 17 December 2004, the application for orders that the defendants pay plaintiffs’ costs in relation to interlocutory hearing  in  June  2003,  dated  2  March  2005,  and  the

application for orders that David Leung and Grace Kwek Joo Lee  appear  for  cross  examination  dated  24  March 2005) were based on improper allegations of serious misconduct. Mr Leung suffered considerable stress, anxiety and humiliation occasioned by having to publicly defend these applications  and  incurred  unnecessary  costs  in  opposing them.

[7] There were also assertions of false evidence being given in affidavits and improper manipulation by Mr Fava of evidence from witnesses for the plaintiffs.

[8] Mr Fava’s opposition to the amended application filed on 23 March 2009 responds to para 6 (f) and (g) by identically numbered paragraphs which read:

(f) In reply to paragraph 6(f) of the amended application the serious allegations of wrongdoing variously made against Mr Leung and Mr Simpson of Bell Gully are not resiled from and to the extent that anyone has suffered stress anxiety and humiliation as a result of having to defend those allegations then Mr Leung and Mr Simpson brought that on by engaging in the conduct complained of.

(g) In reply to paragraph 6(g) of the amended application the serious allegations of wrongdoing variously made against Mr Leung and Mr Simpson of Bell Gully in the three interlocutory applications are not resiled from and to the extent that anyone has suffered stress anxiety and humiliation as a result of having to defend those allegations then Mr Leung and Mr Simpson brought that on by engaging in the conduct complained of.

[9] It is immediately to be noted, first, that the notice of opposition includes Mr Simpson as an addition to the persons listed in the application, and secondly, that the assertions made in that notice of opposition are repeated almost  verbatim by Mr  Fava  in  his sworn affidavit supporting both the opposition to the costs application and the r 9.75 application.

[10] Rule 9.75 gives the Court power to order a person to appear and be examined on oath before the Court, including bringing documents if they have “information relevant to a proceeding or an interlocutory application” and they have refused to make an affidavit concerning that information.  As will be seen, there is no doubt that Mr Simpson has refused to make an affidavit although he has been called upon by Mr Fava and the plaintiffs’ solicitors so to do on a number of occasions over the years.

[11] What is clear, however, is that before an order can be made under r 9.75 it must be demonstrated that the person refusing to make the affidavit has “information relevant to a proceeding or interlocutory application” and it is on that basis that the defendants oppose the making of an order under the Rule.

[12] Mr Fava makes clear, both in his Notice of Opposition and supporting affidavit, that he hopes in due course to persuade the Court either to refuse the defendants’ costs application in its entirety or to reduce it because of the

conduct about which he complains.  The basis therefore for his opposition is to be found in r 14.7(g) which reads:

14.7 Refusal of, or reduction in, costs

Despite rules 14.2 and 14.5, the court may refuse to make an order for costs or may reduce the costs otherwise payable under those rules if –

...

(g)  some  other  reason  exists  which  justifies  the  court refusing costs or reducing costs despite the principle that the determination  of  costs  should  be  predictable  and expeditious.

...

[14] The application for the r 9.75 order sets out its grounds in the following way:

On 16 June 2003 Mr Simpson, as counsel for the defendants and in breach of the duties counsel owes to the Court, concocted false and misleading advice for the Court and advanced that false and misleading advice to the Court, both orally and in writing, as if it was precisely true and correct for the purpose of excluding evidence harmful to the defendants’ case.

and it was as a result of that that the allegations were made.

[15]  Mr  Fava  repeated  the  passages  from  the  Notice  of  Opposition previously cited and followed that with this passage:

(i) Mr Simpson’s wrongdoing needs to be conclusively established before the Court and can be conclusively established by his attendance before the Court;  and

(j) Mr Simpson’s wrongdoing once conclusively established before the Court will be coupled with other dishonest aspects of the defendants’   defence   of   this   proceeding   and   that   combined wrongdoing justifies an order under HCR14.7(g) refusing costs against the plaintiffs and all non parties.  Ground 7 of my Amended Notice of Opposition (set out in full hereunder) refers:

Mr Simpson’s dishonesty as counsel for the defendants coupled with other dishonest aspects of the defendants’ defence of this proceeding justifies an order under HCR14.7(g) refusing costs against the plaintiffs and all non parties.

...

[17] As mentioned, Mr Fava’s supporting sworn affidavit largely repeats may of the assertions already noted.   However, it is pertinent to say that initially Mr Fava says that his position is that the “alarmingly dishonest manner  in  which  the  defendants  have  conducted  their  defence  of  the

plaintiffs’ claim demands that they be awarded zero costs against anyone at all”.     He  repeats  the  assertion  that  Mr  Simpson  provided  false  and misleading  advice  to  the  Court  on  16  June  2003  in  the  terms  earlier mentioned and sets out, at considerable length, the circumstances in which the  unsworn  statement,  then  the  affidavit,  and  then  the  evidence  of Mr Chong, a witness for the plaintiffs but at all relevant times employed by Aral, was obtained. He refutes any suggestion that the allegation of perjury against Mr Leung after Mr Chong gave sworn evidence has no foundation. The affidavit then lists the correspondence, some of which will be later reviewed, before detailing the post-June 2003 actions in relation to Mr Chong’s evidence which ultimately resulted in his giving evidence at length in the substantive hearing.

...

[19] In submissions, Mr Fava detailed the letters sent over the years seeking an affidavit from Mr Simpson - letters which were not responded to in a way which Mr Fava considered appropriate.   He said in his submissions that obtaining  an  order  under  r  9.75  is  “the  only  way  to  determine  if  the concoction allegation is right or wrong which is, of course, right at the heart of this ground of the defendants’ application and right at the heart of the consequent exoneration sought.”  He does not shrink in his submissions from asserting that Mr Simpson perpetrated a fraud on the Court on 16 June 2003 though he accepts that is a matter for the Court to determine particularly if the r 9.75 order is made.  Mr Fava, in submissions, accepted that the wording of his submissions were in strong terms but said they were deliberately chosen and were not used lightly.  He also submitted that granting the r 9.75 order would enable him to have “Mr Simpson clearly defined as a corrupt practitioner” and that “the complete web of lies with Mr Simpson at its epicentre that is the defendants’ defence of the proceedings, that to this day is known only to Mr Simpson and to me” would be demonstrated.    Again Mr Fava said he thought long and hard before including those passages.

[20] Mr Fava summed up his submissions in the following way:

56. By the time I am finished the defendants’ costs application will be completely dismantled and the web of lies that the defendants have hoisted on the Court in defence of this proceeding will be laid bare before the Court and I will then be asking the Court for an order under   HCR14.7(g)   refusing   the   defendants   costs   against   the plaintiffs and all non parties.

...

[29] One of the principal issues which needs to be borne in mind in that regard is that the application is directed to a partner in the firm of solicitors which has acted throughout the case for the defendants.   Yet the costs application is, properly, directed by the defendants to the plaintiffs, Mr Fava and others.   Naturally enough, of course, if successful the defendants’ solicitors will be involved and possibly benefit by the order, but nonetheless what Mr Fava apparently seeks to do in the r 9.75 application is to identify the defendants with the defendants’ solicitors and one of the partners in the firm that represents them.

[30] It is also important to bear in mind that, although unparticularised, Mr Fava’s  Notice  of  Opposition  does  not  stop  at  the  wish  to  quiz Mr Simpson about what is said to be the false and misleading information he gave the Court.   It goes well beyond that and speaks of that wrongdoing being “coupled with other dishonest aspects of the defendants’ defence of this proceeding”.  That is an extraordinarily wide aspect of the application under r 9.75 which, if granted in those terms, would be virtually unlimited as to the issues which could be raised.

[6]      Then, after reciting the dates of letters critical of Mr Simpson, the judgment cited from a letter from the plaintiffs’ solicitors, Murdoch Hall, dated 23 June 2004:

[32] As far as Mr Simpson is concerned, the letter reads:

11.      Our client therefore believes that it is possible to establish beyond   a   reasonable   doubt   that   your   firm   (and   therefore Mr Simpson) knew prior to 16 June 2003 that Mr Chong had offered to answer questions/clarify documents or work initiated by him relating to the litigation.

12. Our client believes it follows your Mr Simpson misled the court on 16 June 2003 with the statement “[Mr Chong] won’t talk to Aral or [its] lawyers”.

...

14.      Our client believes your Mr Simpson also misled the Court with the statement in regard to the confidential brief of Mr Chong. That by original document reference appears incontrovertible.

...

16.      Our client believes the above described conduct amounts to wilful attempts to obstruct prevent pervert or defeat the course of justice.

17.      Churchill will make a law enforcement complaint regarding the conduct of Mr Simpson.   Mr Chong is coming to Auckland

24 June 2004.

Bell Gully responded by fax the same day, saying that none of the statements merited a response and seeking details of the so-called “captured” evidence.

[33] In light of that, even if Mr Simpson did mislead the Court on 16 June

2003  and, as with yesterday’s judgment, this judgment makes no findings on that issue at all – it was no more than one step in one of numerous interlocutory applications before the Court and, most importantly, was fully corrected and the position completely covered by later events concerning Mr Chong’s evidence.   He made an unsworn statement to begin with, just prior to 16 June 2003   When that was ruled inadmissible he produced a sworn affidavit.  More importantly, as Mr Fava’s affidavit makes clear, after the hearing in mid-2003Mr Chong was actively involved over a lengthy period in preparing his brief of evidence and he gave lengthy evidence at the

trial and was extensively cross-examined about all issues which might conceivably have been relevant to the matters arising in the litigation.

[7]      After briefly reviewing the history of the litigation, the judgment held (at

[34]):

“... it needs to be repeated that there is no basis on which to identify Bell

Gully and Mr Simpson on the one hand and the defendants on the other”.

and concluded:

[36] In those circumstances, the conclusion must be that the defendants have demonstrated that Mr Simpson has no “information relevant to a proceeding or interlocutory application” and accordingly the application under r 9.75 is dismissed.

...

[39] In closing, for the reasons mentioned, it must be observed that even if Mr Simpson behaved in a way which was contrary to his professional obligations and his obligations to the Court, it does not seem possible, in all the circumstances discussed in this judgment, to reach some conclusion that his conduct might so damage the defendants’ costs application as to result in an order under r 14.7(g).

Grounds of second amended re-call application

[8]      As  previously  recounted,  the  second  amended  re-call  application  centred around what Mr Fava asserted was the changed circumstance of Mr Chong’s confidential statement being placed before the Court on 27 March 2009.   The application then cited paras [33]-[36] and [39] of the judgment of 24 March, and asserted that the placing of Mr Chong’s confidential statement before the Court amounted to a “change of matters subsequent to delivery of the judgment affecting the outcome” and an exceptional circumstance justifying re-call of the judgment.

[9]      The defendants’ notice of opposition asserted there was no material change in circumstance since delivery of the 24 March 2009 judgment and no other accepted criterion for re-call was made out.

Evidence on application

[10]     As mentioned, on 27 March 2009 Mr Fava swore an affidavit which, in the main,  did  little  more  than  attach  a  copy  of  the  text  of  a  document  signed  by Mr Chong  on  28 April  2003  and  said  the  complete  original  was  held  by  the plaintiffs’ then solicitors, Morgan Coakle.  He followed that with an affidavit sworn on 30 March saying he had spoken to Mr Chong on 26 March and was authorised to disclose his confidential statement to the plaintiffs’ then senior counsel.  He did that by exhibiting it to his 27 March affidavit.

[11]     Mr  Fava  followed  that  with  an  affidavit  sworn  on  17 April  exhibiting  a number of letters which he asserted were relevant to his r 9.75 application.   They included one from Morgan Coakle to independent counsel’s then firm dated 16 July

2003  saying  the  firm  held  Mr  Chong’s  original  brief  of  evidence,  marked confidential to the plaintiffs’ senior counsel, and saying it would not be disclosed to anybody without a Court order, that being the arrangement between Messrs Fava and Mr  Chong.    Documents  put  before  the  Court  for the  21 April  hearing  included submissions in relation to the costs application and submissions made to support an application on 23 March 2009 to adjourn that matter.  Those submissions included reference to Mr Simpson’s conduct, as had his affidavit sworn on 23 March 2009 in opposition to the costs application.  In part, that affidavit and its exhibited documents repeated some at least of the material put before the Court as exhibits to Mr Fava’s affidavit sworn on 18 February 2009, also in opposition to the costs application. Further documents put before the Court on 21 April by Mr Fava included a bundle headed “Five Heads of Alleged Unlawful Conduct” by Mr Noel Fava, one of his brothers, and the brother’s solicitor.  Then, as mentioned, on 2 June 2009 after the re-call hearing was completed, Mr Fava filed two further large bundles of documents described as his “Practical Demonstration” of some of the issues he had dealt with during the hearing which again asserted unlawful conduct by his brother and his solicitor and which:

… absent some exculpatory information from Bell Gully, that in furtherance of the defendants’ bundling technique to undermine my credibility, senior counsel for the defendants has been misleading the Court when advancing that my allegations against Noel Fava/Keith Young are without basis and he has done so because he has not been receiving full and accurate information from Bell Gully.

Mr  Simpson  has  been  the  partner  at  Bell  Gully  responsible  for  this proceeding throughout the life of this proceeding.

Mr Simpson needs to appear before the Court and provide the exculpatory information (if any).

Mr Fava said he omitted to put that material before the Court on 29 May because he developed a headache during the hearing.  That notwithstanding, Mr Fava produced a dozen documents during his submissions that day, many of which were copies of documents filed earlier in the case.

[12]     Lest it be thought the traffic was all one way, at the hearing on 29 May the defendants produced a “bundle of documents relating to Mr Fava’s allegations of misconduct”.   The 23 documents attached began with Mr Chong’s confidential statement of 28 April 2003 exhibited to Mr Fava’s 27 March 2009 document through Mr Chong’s open statement of 13 June 2003, a number of other documents filed in the ensuing years, some correspondence and one document produced on 2 March

2007 following the r 485 judgment on the substantive hearing in the defendants’

favour.

Submissions

[13]     Mr Fava   relied   on   the   citation   in   McGechan   on   Procedure   (para HR 11.9.01(2)(c) p 1-1309) from R v Smith [2003] 3 NZLR 617 where it was said that Courts have power to re-visit their decisions in “exceptional circumstances when required by the interests of justice” and the other passages from McGechan recounting the well-rehearsed grounds for re-call.

[14]     He acknowledged his application was one day out of time – but that is of no consequence, as Mr Fava was advised at the time.

[15]     He said he intended to demonstrate that matters had so changed subsequent to delivery of the 24 March judgment as to require the Court to revisit its findings in the exceptional circumstances which, he submitted, obtained, or that there had been a material  change  of  circumstance.     He  emphasised  that,  because  Mr Chong’s statement was now before the Court the reasons cited in paras [33]-[36] and [39] of the judgment no longer applied.

[16]     Mr Fava rehearsed the chronology of the matter in detail.  Prime points on which he relied were:

a)       That on 4 November 2002 Anton Pillar orders were executed and an HSBC document dated 8 October 1999 was obtained by Churchill. That  document  mentions  linkage  between  Aral  and  the  Sohmen family, with Dr Sohmen being deputy chairman of HSBC.   After recording financial difficulties for Mr Fava and his companies and problems with meeting the Pacific Plaza indebtedness to HSBC, the letter  commented  “the  position  is  messy and  delicate  (due  to  the Sohmen connection)” and continued:

A feature of our loan is that we hold a side letter from David Leung stating that Aral fully intends to exercise certain rights under their J/V agreement in the event Cachinal defaults on a payment.   Inter alia this would involve Aral advancing funds to Cachinal to ensure all loan obligations are met.  The J/V agreement provides that in such a case the defaulting party’s share in the J/V property would be reduced accordingly.

Clearly the most desirable outcome for the Bank is for Aral to buy out Cachinal’s share and also to continue the development on the expansion land to secure the Warehouse lease.

(b)On 28 April 2003 Mr Chong made his unsworn statement confidential to the plaintiffs’ then senior counsel (not Mr Stewart QC) and on

9 June 2003 Mr Stewart met Mr Simpson and Mr Mitchell of Bell

Gully. Mr Stewart had a copy of Mr Chong’s statement.

(c)On 13 June 2003 after taking independent legal advice, Mr Chong made an unsworn open  statement which Mr Fava exhibited to his affidavit of 13 June 2003.

(d)“Critically”, as Mr Fava put it, on 16 June 2003 at the commencement of  the  hearing  of  several  interlocutory  applications  Mr Simpson provided the Court and the plaintiffs with his “Opposition to Fava Affidavit No.5” document in which he said:

1.        Fava affidavit served on 13 June 2003

(a)contains comprehensive statement of Chong signed on same date

(b)      earlier version provided to Churchill on 28 April

(c)       for inexplicable reason provided on a confidential basis

(d)      now conveniently provided on open basis

(e)       of concern material amendments have been made to the doc

(i)Para  111  says  Chong  resigned  because  frustrated over lack of progress in MOU

(ii)       previous   version   referred   to   and   agreed   with statement in HSBC bank note that Chong resigned because frustrated that Aral wouldn’t exercise right to take out Cachinal’s interest in PP

Mr Simpson also said he “sighted the statement” at the 9 June meeting and that Mr Chong was obviously providing “substantial assistance to Fava” and that he “won’t talk to Aral or lawyers”.

(e)Mr  Fava’s  affidavit  having  been  ruled  inadmissible  in  an  oral judgment delivered on 16 June 2003, an affidavit sworn by Mr Chong in Singapore overnight was produced to the Court on 17 June.

(f)On 26 June 2003 Mr Stewart, who said he at the time was advising Churchill  in  relation  to  this  case,  filed  a  memorandum  saying Mr Simpson “did not read any part of the statement” by Mr Chong at the 9 June meeting, though Mr Simpson would have seen him holding

the  bulky  document.     On  21 March  2005  Mr Simpson  filed  a memorandum  saying  Mr Stewart  quoted  several  extracts  from  the statement at the 9 June meeting and he was “confident that at one stage during the meeting I looked over his shoulder as we read one paragraph together”.   Mr Stewart responded by affidavits sworn on

18 April and 14 May 2005 (to the earlier of which the 16 June 2003 memorandum was exhibited) saying that “at no stage during the meeting on 9 June 2003 did I allow Mr Simpson to look over my shoulder and read a paragraph of Mr Chong’s confidential” statement.

(g)From 10 June 2004 there was an exchange of correspondence on the issue of whether Mr Simpson misled the Court on 16 June 2003 and also challenging whether Bell Gully was in a conflict of interest situation.    That  correspondence  was  sufficiently  reviewed  in  the

24 March judgment.

[17]     Mr  Fava  submitted  that,  although  he  had  raised  the  position  concerning Mr Simpson’s 16 June 2003 statement to the Court during his initial submissions on the r 9.75 application, it was, at least at that stage, incorrect for the Court to conclude Mr Simpson  had  no  information  “relevant   to  a  proceeding  or  interlocutory application”.  Thus, dismissal of the application was in error.

[18]     Then, with Mr Chong’s approval, Mr Fava put his confidential statement in evidence, Mr Fava’s proposed subpoena to Morgan Coakle to produce the original having been dismissed on 24 March.  That meant, so Mr Fava submitted, the cited statement from Mr Simpson’s 16 June memorandum was wrong when seen against the  HSBC  memorandum  and  Mr Chong’s  statements,  a  submission  which  was bolstered by his notes of the submissions taken by senior counsel acting for the plaintiffs in 2003.   All of that, he suggested, meant that what may have been a disputed allegation of concoction made against Mr Simpson in relation to his 16 June memorandum  when  the  r 9.75  application  was  originally  argued  was  now  a “conclusively   proved   concoction   allegation   against   Mr Simpson”   as   regards para (1)(e)(ii) of the 16 June memorandum.   He, therefore, submitted Mr Simpson needed to appear as a witness to provide information which he has and which was

relevant to ground 6(g) of the defendants’ costs application (cited earlier).  He gave examples of questions he believed should be put to Mr Simpson in that regard.

[19]     Mr Fava went as far as submitting that:

53.... the Court must find the concoction allegation proved in the absence of exculpatory evidence from Mr Simpson – the court has no option but to make that finding because the two documents are now before the Court.  Inspection of them shows what Mr Simpson says he saw while looking over Mr Stewart’s should and could not have been seen because it was not there. … It automatically follows the judgment must be re-called.

[20]     He continued:

59.Absent     some     exculpatory     information     forthcoming     from Mr Simpson  in  examination  I  will  have  conclusively  proved  the concoction allegation and I will have Mr Simpson clearly defined as a corrupt practitioner [“at least”, ad lib addition] as at 16 June 2003.

60.In  those  circumstances  ground  6(g)  of  the  defendants’  costs application:

(a)       Which includes the application for rescission of security for costs dated 17 December 2004;  and

(b)Which  application  for  rescission  includes  as  ground  2(b) Mr Simpson’s alleged corrupt conduct on 16 June 2003;  and

(c)       Which   alleged   corrupt   conduct   on   16 June   2003   the defendants’ application for costs ground 6(g) claims was an “improper allegation(s) of serious misconduct”

falls completely to bits.

[21]     And, the documents required to be produced by Mr Simpson were those:

61.      …

(b)      Documents perhaps showing Bell Gully were liable to Aral

… for the amount of any eventual judgment in the plaintiffs’ favour  as  a  consequence  of  Bell  Gully  first  negligently failing to obtain a restrictive covenant for Aral from my interests not to put a food retailer in the Superstore, second negligently failing to obtain a covenant from my interests allowing Aral to build on the common area of a property on unit titles and third negligently cancelling the full and final settlement provision between Churchill and Aral thereby opening   the   door   for   Churchill   to   commence   this proceeding.

[22]     Mr Fava undertook a detailed examination of all documents he regarded as relevant including some relating to his bankruptcy.   He suggested the defendants should not oppose his application because it “provides them with a gold-plated opportunity to show there are no such documents and consequently show me to be a delusional conspiracy theorist”.

[23]     Mr Fava then presented his view of facts which he suggested demonstrated Bell Gully’s vulnerability to a negligence claim by Aral.  In particular that focused on the assertion that when one of his companies, Nomoi, settled a dispute concerning the Superstore the compromise extinguished a settlement agreement between Churchill and Aral thus enabling Churchill to commence this proceeding (mentioned in para [21] above).  He said:

75.In my submission, as a result of Bell Gully’s negligence, from the minute   this   proceeding   was   issued   Bell   Gully   have   hitched themselves to defending Aral through thick and thin because if Aral goes down to my interests for $10m or $20m or whatever Bell Gully will immediately face a claim from Aral for a like amount i.e. $10m or $20m or whatever.

76.Further, it has not just been the defendants who have engaged in a defence encompassing dishonest dealing.   Bell Gully has also engaged  in  a  defence  encompassing  dishonest  dealing  e.g.  the conduct of Mr Simpson I wish to conclusively establish by way of the r 9.75 order.

77.In my submission, in the defence of this proceeding the defendants and Bell Gully are Siamese twins – the interests of one are the interests of the other and that interest is defeating my interests [read as ‘claim’] at whatever cost - …

…

81.By means of this application, I propose to establish that Bell Gully ought to have known or did know they ought not to be acting for Aral yet they continued to act so as to maintain control of the proceeding because if they relinquished control of the proceeding independent counsel could well have advised Aral to either put Bell Gully on notice or to issue proceedings against Bell Gully on the basis  Aral  considered  Bell  Gully  liable  for  the  amount  of  any eventual judgment in favour of the plaintiffs as a result of Bell Gully’s negligence cancelling the full and final settlement thereby opening the door to this proceeding.

[24]     Mr Fava further submitted that, should the re-call application succeed, he would  endeavour  to  demonstrate  Mr Simpson  placed  evidence  from  Mr  Leung

before the Court which Mr Simpson knew was false and misleading, a submission he endeavoured to support by reference to a number of the earlier documents in this case  and  his  litigation  with  his  brother.    It  is  not  proposed  to  review  those submissions in detail save to note they centred around the circumstances in which Messrs  Leung  and  Chong  discussed  the  latter  assisting  Aral  in  the  case.    It particularly focused on statements by Mr Leung of speaking with Mr Chong and contrasted that with the “won’t talk to Aral or lawyers” comment in the 16 June memorandum.

[25]     He  submitted  that  because  the  defendants’  costs  submissions  included assertions of ill-considered and unwarranted allegations of fraud by him, not just against the defendants but against their solicitors as well, that provided further evidence those parties were to be identified and strengthened the opposition under the grounds set out in r 14.7(g).  Again, he sought to demonstrate that submission with reference to a number of memoranda and passages in the evidence in the substantive claim.

[26]     He submitted that the passage in the 24 March judgment that any misleading was “fully corrected and the position completely covered by later events” (para [33] p10) was itself misleading in suggesting Mr Simpson corrected the statement.   He was advised during his submission that was not the inference to be taken from that passage.  Rather, it was a recognition that even if the earlier statement was wrong, Mr Chong  immediately  provided  a  sworn  affidavit,  he  gave  evidence  for  the plaintiffs in later interlocutory proceedings, and, of particular importance, gave extensive evidence at the substantive hearing.

[27]     Mr Fava also handed up extensive supplementary submissions on 29 May

2009 together with a number of what he regarded as supporting documents.  They glossed various passages in his initial submissions and amplified them.  They have been perused but, since they fleshed out, rather than added to, allegations made in the main submissions, it is considered unnecessary to detail their contents.

[28]     Mr McBride  submitted  the  re-call  application  did  not  fit  criteria  well recognised by authority.   There was, he submitted, nothing new in the material

submitted by Mr Fava – and, indeed, nothing new had arisen on this aspect of the matter over the past few years.  Whatever the correct position concerning the events of 16 June 2003, the effect of the oral judgment meant the plaintiffs needed a sworn affidavit from Mr Chong to assist them in opposing the defendants’ interlocutory applications to strike out the whole or part of the proceedings and to set aside Mr Leung’s protest to jurisdiction.  Once that appeared, even if the assertions about Mr Simpson’s statement were correct – something, of course, Mr McBride did not accept –any statements made by Mr Simpson could have had no material influence on the course of the proceeding over the more than four years which elapsed before the substantive hearing, still less on the defendants’ costs application.

[29]     He made the point Mr Chong’s initial statement was signed in April 2003 and accordingly Mr Fava had ample opportunity to place it before the Court in sworn form either before the June 2003 interlocutory hearing or, more particularly, prior to the costs hearing in March 2009.

[30]     To now suggest, as Mr Fava did, that the Court had a “proven concoction”

allegation was, in Mr McBride’s terms, “risible”.

[31]     He put before the Court the bundle of documents earlier mentioned to support his  submission  that  Mr  Fava  and  his  interests  have  vigorously  attacked  the defendants and their advisors for well over five years in what he submitted was, to put it at its mildest, an irresponsible fashion.   He particularly relied on a lengthy memorandum filed by Mr Judd on 7 February 2005 which was expressed in terms so trenchantly critical of the defendants and their advisors that it led the Court, in a minute issued the following day, to observe:

[15]      In the memorandum Mr Judd dealt extensively with what Mr Fava had advised him was the background to this matter including the circumstances leading up to Mr Chong providing an affidavit part-way through the July 2003 hearing.  The memorandum also dealt with a without prejudice meeting held on 9 June 2003 and what he submitted were breaches of professional ethics on Mr Simpson’s part in relation to that meeting.

[16]     Mr   Simpson   took   strong   exception   to   the   contents   of   the memorandum making the point that it included serious allegations against the second defendant, Mr Leung, and Mr Simpson personally and his firm. Those allegations, he submitted, were based on conjecture and speculation

not evidence.  He sought an order that the memorandum be removed from the file as scandalous.

[17]     In response, Mr Judd submitted he was fully entitled to file the memorandum as part of counsel’s duty to the client.

[18]      There are certainly a number of aspects which are not such as would usually be found in a memorandum from senior counsel and which, Mr Judd not having been involved in this claim until towards the end of 2004, would have seemed to be likely to have been sourced from Mr Fava.  As examples of such, of the range of interpretations available on each of the factual matters mentioned, the memorandum seems invariably to opt for that most critical of the defendants and their advisers.

[19]      The Court is not prepared to rely on the memorandum at this stage.

…

[32]     When  Mr   Chong’s  April  2003  statement  now  produced  by  Mr Fava  on

27 March 2009 was compared, both with his unsworn and sworn affidavit of June

2003, Mr McBride submitted the material differences between the two were exactly those outlined by Mr Simpson.  Hence, it could not be said he misled the Court – as the defendants had submitted towards the end of the costs hearing.

[33]     He submitted that, all along, the reliance placed by Mr Fava, his companies and  their  advisors  on  what  they  regarded  as  conduct  misleading  the  Court  on Mr Simpson’s part in and from the 16 June hearing was never more than a tactical device to force the defendants to engage other legal representation.  That was made explicit in correspondence from Mr Fava’s solicitors in 2004 and has been reiterated many times since.   He made the point that it was not until the 24 March 2009 judgment refusing the application for Mr Simpson to be cross-examined and produce documents, that Mr Fava in his “typically dramatic fashion” then swore an affidavit putting Mr Chong’s confidential statement in evidence.  Mr McBride also deplored the  terms  in  which  Mr Fava’s  submissions  on  the  re-call  application  attacked Mr Simpson and Bell Gully.  He concluded:

17.… The defendants and their advisers, including Mr Simpson, look to the Court for protection from these attacks.   It is readily apparent that until Your Honour makes a finding that Mr Fava’s allegations have no foundation, he will continue to repeat them in subsequent appeals and in other proceedings, such as his second application in his bankruptcy.

18.The irony is that it is Mr Fava  who has acted in a  corrupt and dishonest  manner  throughout.    At  all  times  he  knew  that  Mr

Simpson’s submissions to the Court were accurate.  He has therefore knowingly   made   false   and   malicious   allegations   against   Mr Simpson.

19.The defendants and their advisers ask the Court to address these allegations squarely.  Mr Simpson’s submissions in June 2003 were accurate.   The submissions about Mr Chong’s reluctance to help Aral were correct (see the affidavits from Messrs Leung and Storey, and Ms Kwek), and the submission that there were material differences  between  the  April  and  June  versions  of  Mr Chong’s witness statement was also correct.

[34]     In his reply, Mr Fava repeated that Mr Simpson’s actions on 16 June 2003 were “deliberately wrong” and suggested it was “extraordinary” the Court had heard no explanation from Mr Simpson of the cited words from his memorandum of that date.

[35]     He  disputed  any  suggestion  he  had  withheld  Mr Chong’s  confidential statement for strategic purposes, giving details of what he said were arrangements made in relation to the provision in Mr Chong’s statement.

[36]     He said that he, too, was looking for protection from the Court because he was “at a complete loss” to understand how Mr Simpson’s actions on 16 June 2003 and since were “other than complete invention”.

Discussion and Decision

[37]     To   navigate   the   cross-currents   of   allegation   and   counter-allegation concerning this application, it is important to keep in mind the issues for decision:

(a)      Whether the application falls within the limited criteria settled by authority for re-call of judgments, that is to say whether the putting of Mr Chong’s confidential statement into evidence so alters the landscape of the r 9.75 application as to justify re-calling the 24 March judgment.

(b)Whether re-calling the judgment and permitting Mr Fava to call Mr Simpson in evidence on the topics outlined and to produce the documents indicated by him is likely to assist the Court deciding on the defendants’ increased or

indemnity costs application or, to put it more precisely, assist the Court in deciding on Mr Fava’s defence of that application, namely whether there is a reason to refuse to make an order for costs or reduce the costs otherwise payable because “some other reason exists” which justifies that course under r 14.7(g).

[38]     If the answer to the second question is “yes” then the answer to the first will almost certainly be “yes”.

[39]     However, the second question – so far as it relates to the present application –

itself resolves into subsidiary questions:

(a)Judgment having been given for the defendants against the plaintiffs, thus giving the defendants a prima facie entitlement to costs, whether their application for increased or indemnity costs, or the opposition of Mr Fava and the plaintiffs, is likely to be affected by the proposed evidence from Mr Simpson covering such topics as the events surrounding his 16 June 2003 memorandum.

(b)A major factor influencing the increased/indemnity costs application will be the  Court’s  assessment which  party was  likely to  have  succeeded  in  the substantive litigation had it run its full course and a reasoned judgment ultimately been delivered.  That is by no means the only issue, but is a major one, and it is to be largely resolved – despite the lengthy hearing and the voluminous  documentary  trail  –  by  assessments  of  credibility  between Messrs  Fava,  Harris  and  Chong  giving  evidence  for  the  plaintiffs  and Mr Leung for the defendants.

(c)      The way in  which  the  parties  ran  the  litigation  up  to  and  including  the substantive hearing may also turn out to be an issue affecting the increased/indemnity costs application and its opposition.

[40]     It is helpful to consider those issues in reverse order.

[41]     As remarked in a number of judgments, all parties have waged this litigation in a vitriolic, ill-tempered and personal fashion.  Assertions of reprehensible conduct and underhand conduct have been commonplace.  Who began that approach to the litigation and who was the worst offender is, at least for the present application, immaterial.  The matters relating to Mr Chong’s confidential statement, the events of

16 June 2003, the subsequent dealing with the Chong evidence and the present application need to be seen in that context.  Thus the manner of the expression of the evidence and submissions on the present application is consonant with the parties’ approach to the litigation – particularly its repeated ad hominem approach – and the parties’ deep distrust and dislike of each other, rather than whether the issues surrounding the application were sufficient to mandate such extreme expression.

[42]     In that regard, what needs to be born in mind is that Mr Chong was, at all times relevant to the factual matters at issue in the proceeding, an employee of Aral yet gave evidence for the plaintiffs.   Thus, although the parties had two representatives apiece at the critical meetings, by well before the time of the substantive  hearing  Mr Chong  had  changed  sides  and  agreed  to  come  to  New Zealand to give evidence against his former employer.   His preparedness to do so must have been seen as a coup by Mr Fava and his interests.

[43]     That  bears  significantly  on  the  present  application  because,  although Mr Chong’s willingness to provide a confidential statement to the plaintiffs and the way in which that was done was of major importance to the plaintiffs and doubtless of major concern to the defendants up to and including 16 June 2003, his provision of his sworn affidavit overnight on 16/17 June 2003 and its being filed on the latter date meant that however the earlier statements had been prepared and furnished to the plaintiffs became largely redundant.

[44]     The defendants had been successful on 16 June 2003 in persuading the Court to rule Mr Fava’s fifth affidavit inadmissible.  That was doubtless seen by them as an advantage in the interlocutory applications then for hearing.   But the provision of Mr Chong’s sworn affidavit overnight on 16/17 June meant any advantage to the defendants from the oral judgment of the previous day was materially diminished as

the  Court  was  able  to  have  regard  to  what  Mr Chong  said  in  his  affidavit  in determining the then current interlocutory applications.

[45]     However, it is of particular importance as far as the present application is concerned to record that the contents of Mr Simpson’s 16 June 2003 memorandum, the way in which it was expressed, and his oral submissions were far from the governing factor which resulted in the ruling that Mr Fava’s fifth affidavit was inadmissible.    The affidavit  attempted  to  put in  evidence an  exhibited  unsworn statement.  The principal reason for ruling the fifth affidavit inadmissible was that its exhibit was plainly hearsay.  Whilst hearsay is admissible under the Evidence Act

2006, the June 2003 hearings were well before the law was changed in that regard so the fact that it was hearsay was the principal reason for ruling the affidavit inadmissible.  In addition, it is trite to say that courts act on sworn evidence, but the statement exhibited to Mr Fava’s fifth affidavit was unsworn.   As a result of a combination of those factors, the ruling that Mr Fava’s fifth affidavit was inadmissible can hardly have come as a surprise to the plaintiffs.  Doubtless it was the ruling which resulted in Mr Fava being able to arrange for Mr Chong to swear the affidavit overnight in Singapore and transmit it to New Zealand for presentation the following day.   It then became evidence in the interlocutory hearing without major objection from the defendants.

[46]     Those  results  were  largely,  if  not  wholly,  unaffected  by the  contents  of

Mr Simpson’s 16 June 2003 memorandum.

[47]     As  far  as  the  present  application  is  concerned,  that  means  that  even  if Mr Simpson’s 16 June memorandum was incorrect, knowingly or unknowingly, any misleading of the Court which might have resulted was completely supplanted by Mr Fava obtaining Mr Chong’s affidavit overnight, thus enabling his evidence to be taken into account in deciding the various interlocutory applications.  It was Mr Fava who achieved the filing of Mr Chong’s sworn affidavit and it is therefore extremely difficult for him to maintain that some divergence between the various versions of the antecedent Chong statements and Mr Simpson’s claimed misrepresentation of them have, over the intervening six years, and now, are of such importance they bear

on whether r 14.7(g) can avail Mr Fava and the plaintiffs and whether they assist them in the re-call application.

[48]     That is not to say that Mr Simpson’s 16 June memorandum was necessarily accurate – again, the court makes no finding in that regard -   but whether any inaccuracy which could  be proved resulted from haste, inadvertence,  mistake, a deliberate  breach  of  matters  discussed  in  his  “without  prejudice”  meeting  with Mr Stewart or a deliberate attempt to mislead the Court, is all entirely beside the point.  Mr Chong’s sworn evidence was put before the Court on 17 June 2003.   It was taken into account in determining the interlocutory applications then requiring decision.  Mr Chong gave evidence for the plaintiffs in later interlocutory matters. Most importantly, he gave extensive evidence and was also extensively cross- examined at the substantive trial – including about the various versions of his statements and how he came to agree to give evidence for the plaintiffs.

[49]     Therefore,  whether  Mr Simpson  was  right  or  wrong  in  what  he  did  on

16 June 2003 and whether any incorrectness was deliberate or inadvertent – and, again, this judgment makes no finding on that issue – cannot possible avail Mr Fava in his opposition to the increased/indemnity costs application, and thus cannot assist him in the application for re-call.   If it was an issue up to and including 16 June

2003, it was an issue which was entirely spent after that date by the provision of

Mr Chong’s affidavit and his subsequent attitude towards this proceeding.

[50]     There is a further important reason for reaching the same conclusion, namely that, even if Mr Simpson’s actions on 16 June 2003 and surrounding the Chong statements are assumed to have been in breach of his professional obligations to the Court, that is no basis on which to found a conclusion that Mr Simpson’s assumed breaches  of  his  obligations  in  that  regard  might  impact  on  the  defendants’ entitlement to increased/indemnity costs or on Mr Fava’s opposition under r 14.7(g). As  mentioned  in  the  24 March  judgment,  the  costs  application  is  that  of  the defendants.   Mr Simpson’s firm as acted as lawyers for the defendants throughout this matter.  But the interests of the two are those of client and lawyer.  They cannot be identified with each other in a way which could impact on the defendants’ costs application as that connection was earlier recounted.  If it were relevant, it would be

a matter to be taken into account in any litigation between the defendants and Bell

Gully, not in this litigation.

[51]     Following on from that, a re-reading of the statement of claim confirms that the issue on which Mr Fava now places reliance were, seen in the most favourable view  from  his  light,  only  tangentially  raised  as  issues  in  the  hearing  and  the suggested vulnerability of Bell Gully to a negligence claim by Aral did not feature at all.

[52]     Perhaps surprisingly, the HSBC 8 October 1999 file note also featured little in the substantive hearing.   No doubt it may have been the subject of cross- examination had Mr Ronald, its author, been cross-examined.  But the fact remains that although the suggested links or influence of the Sohmen family over the actions of  HSBC,  Mr  Leung,  Mr  Chong,  and  others  involved  in  the  litigation  was extensively probed, the 8 October 1999 memorandum did not bulk largely at the trial.   That may have been because, by 8 October 1999, the principal events with which the substantive hearing was concerned were in the past and the relationships between the parties by that stage and thereafter were largely matters of narrative bearing on quantum.  But one of the reasons Mr Fava advances in support of this application – namely, the matters referred to in his submissions earlier recounted – was simply not an issue at trial of any significance.

[53]     Therefore, to allow a re-call of the judgment for Mr Simpson to be called to give evidence along the lines advanced by Mr Fava would mean taking the costs application off in a new direction, and one that – at most – was no more than peripheral to the matters in issue in the claim and one which would probably occupy significant time and resources with, it would appear, the issues canvassed being, at its highest for Mr Fava, only marginally relevant to the costs question.   When the Court says it would “take the application off in a new direction” that is, in truth, an under-statement:  it would result, in effect, in the hearing of an alleged professional negligence claim as between solicitor and client at the instigation of a third party with no direct interest in the issues raised in such litigation.

[54]     A  further  factor  of  some  importance  in  leading  to  the  conclusion  that Mr Fava’s  re-call  application  must  be  dismissed,  is  that  -  as  the  terms  of  the applications and submissions earlier recounted demonstrate – what Mr Fava wishes to do in cross-examining Mr Simpson and having him produce documents, goes vastly beyond whether, in phrasing his 16 June 2003 memorandum as he did, he was intentionally attempting to mislead the Court.  As paras [61](b) [75] [76] [77] and [81] (quoted in paras [21]-[23] of this judgment) of the submissions earlier recited show, what Mr Fava, in effect, wishes to do in cross-examining Mr Simpson and having him produce documents to the Court, is to try the issue which he sees as lying behind Bell Gully continuing to act for Aral throughout this claim.  Beyond being mentioned by the plaintiffs, Mr Fava and their advisors from time to time over the years, it was not an issue in the substantive claim.  It has not become an issue since. It was not an issue in the increased/indemnity costs application.  It cannot be allowed to become an issue now.

[55]     Of course, the defendants and Bell Gully have always been identified in the sense of one acting for the other to meet the claims made on the defendants but that says nothing about whether re-calling the judgment and requiring Mr Simpson to give the extensive evidence proposed will provide Mr Fava with grounds to ask the Court  to  invoke  r 14.7(g).    To  repeat,  any  issues  concerning  Bell  Gully  and Mr Simpson on the one hand and the defendants on the other, whether in relation to the 16 June 2003 memorandum or generally, are issues between those parties – or even, were Mr Fava’s assertions to prove to be wholly correct (and the Court offers no comment on that possibility), between Mr Simpson and the New Zealand Law Society.  They are not issues involving Mr Fava and the plaintiffs.

[56]     To put matters plainly, the substantive increased/indemnity costs application is one by the defendants seeking an order that the plaintiffs (and others) pay to the defendants costs to which they are prima facie entitled following judgment in their favour, not on a scale basis but on an increased/indemnity basis.  The plaintiffs and Mr Fava (and others) are resisting an order to that effect because they assert that there exists “some other reason” which justifies the Court refusing or reducing costs, namely what Mr Fava asserts was Mr Simpson’s “concoction” of some of the terms in the 16 June 2003 memorandum, coupled with his actions since in that regard, and

what Mr Fava suspects underlies Bell Gully continuing to act for the defendants. Even were Mr Fava’s unshakeable belief in the correctness of his view to be borne out by evidence – and, again, the Court makes no comment on that possibility – any issues concerning the 16 June 2003 memorandum, if incorrect or inaccurate, were wholly set at nought the following day.  And any issues such as those now raised by Mr Fava between Bell Gully/Mr Simpson on the one hand and the defendants on the other could only be issues involving those parties and perhaps the New Zealand Law Society, but could not be issues in any way relevant to the application for increased/indemnity costs.  Bell Gully continued to act for the defendants in a way which appeared to be professional.   The defendants were represented  by senior counsel, Mr Miles QC, at the substantive hearing and doubtless it was he who directed how the claim was to be defended.    If the application for increased/indemnity  costs  were  to  be  granted,  it  would  be  granted  for  reasons entirely unconnected with Mr Simpson’s 16 June 2003 memorandum and entirely unconnected with whatever undercurrent ran, in Mr Fava’s view, between the defendants on the one hand and Bell Gully on the other.  The issues raised in the re- call application are simply irrelevant to the issues raised in the increased/indemnity costs application.

Result

[57]     The putting of Mr Chong’s confidential statement in evidence between the

24 March judgment and the r 9.75 application and this re-call judgment does not impact  on  the earlier  judgment  in  such  a way as  to  justify re-calling  it.    That additional  factor  does  not  fall  within  the  criteria  for  re-call  as  set  out  in  the authorities.   And, despite Mr Fava’s strenuous efforts to expand the dispute in the ways earlier recounted, the Court’s conclusion is that there is nothing in the material put  before  it  on  the  re-call  application  which  is  likely to  result  in  matters  not previously covered coming into evidence in a way which will assist the Court in its decision on the substantive issues in the costs claim.

[58]     Mr Fava is granted leave to file his application to re-call the 24 March 2009 judgment out of time but his application is dismissed.

.................................................................

HUGH WILLIAMS J.

Solicitors:

McElroys (Andrea Challis/Rachel Scott), P O Box 835 Auckland 1140, for Mr Yee and

Murdoch Price   Email:   andr[email protected] / rach[email protected].nz

Murdoch Price & Co (K M Yee) P O Box 23 620 Hunters Corner, Manukau 2155

Email:    [email protected]

Bell Gully (Ralph G Simpson/Josh McBride) P O Box 4199 Auckland 1140

Email:  ralph[email protected] / josh[email protected]

Shieff Angland (M Robertson) P O Box 2180 Auckland 1140

Email:    [email protected]

Copy for:

Mr Philip Fava, P O Box 37 606 Parnell, Auckland 1151  (Phone/Fax: [phone])

Email:    [email protected]

Julian G Miles QC, P O Box 4388 Shortland Street, Auckland 1140

Email;   [email protected]

Case Officer, Auckland High Court:           Vasantha[email protected]

Scheduler:  Corrin[email protected]