Clayton v Clayton

[2015] NZHC 776

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CIV-2014-463-000112 [2015] NZHC 776

BETWEEN

MARK ARNOLD CLAYTON

Appellant

AND

MELANIE ANN CLAYTON Respondent / Cross-appellant

Judgment:                21 April 2015

JUDGMENT OF COURTNEY J [Recall of Judgment]

This judgment was delivered by Justice Courtney on 21 April 2015 at 4.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………

CLAYTON v CLAYTON [2015] NZHC 776 [21 April 2015]

[1]      In my judgment delivered on 24 March 2015 I held that, as a matter of law, a maintenance  order  could  include  an  allowance  for  legal  and  accounting  fees. Mr Clayton has sought to have me recall that judgment to address an issue that he says  was not  adequately canvassed in  argument, namely whether an  adjustment mechanism existed by which a party paying maintenance that included an allowance for legal fees could recoup such payments at the conclusion of the proceedings.

[2]       Ms Hosking, for Mrs Clayton, had argued that such mechanisms existed.  I held that the mechanisms she proposed did not exist, but concluded that whether there was an adjustment mechanism or not would not affect my conclusion that, in principle, legal and accounting fees could be included in a maintenance order.

[3]      Ms McCartney submitted that in reaching my conclusion I had not addressed the situation where costs awards were made that were less than the maintenance paid. She sought to have the judgment recalled so that this scenario could be addressed. I indicated that I did not regard it as appropriate to do so and, after further reflection, that is still my view.

[4]      Recalling a judgment is permitted by r 11.9.   However, it is regarded as a serious step and the circumstances in which that step might be taken are generally regarded as limited to those described in Horowhenua County v Nash (No 2).1   These categories are first, where there has been a statutory change or new authority subsequent to the hearing; secondly, where counsel failed to direct the Court’s attention to a relevant statutory provision or authority; and, thirdly, where “for some

other very special reason” justice requires that the judgment be recalled.   If the circumstances do not fall into one of these categories then, generally, the judgment

must stand subject to the parties’ rights to appeal.

1      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, applied in Saxmere Co Ltd v

Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76 (SC).

[5]      Although the third category has been  recognised to include the situation where a judge has failed to determine an issue properly put to him or her2  I do not consider that the present case falls within that category.  The issue of an adjustment mechanism was plainly raised and dealt with by Ms Hosking in her submissions.  It was not dealt with in quite such detail by Ms McCartney and the argument currently being advanced was not made. However, I am satisfied that the issue was properly

dealt with having regard to the submissions before me.  Further, I am satisfied that even taking into account the argument that Ms McCartney now wishes to advance, the outcome would not have been any different.

[6]      The application for recall is therefore dismissed.

P Courtney J

2      Brake v Boote (1991) 4 PRNZ 86 (HC).