COLCROFT HOLDINGS LIMITED AND JASON JOSEPH MEADOWS

[2024] NZHC 2854

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-002162

[2024] NZHC 2854

BETWEEN

COLCROFT HOLDINGS LIMITED

Plaintiff

AND

JASON JOSEPH MEADOWS

Defendant

Hearing:	On papers
Appearances:	H G Holmes for Plaintiff N Scampion for Defendant
Judgment:	2 October 2024

JUDGMENT OF WHATA J

This judgment was delivered by me on 2 October 2024,

pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:

Keegan Alexander, Auckland

N Scampion, Shortland Chambers, Auckland

COLCROFT HOLDINGS LTD v MEADOWS [2024] NZHC 2854 [2 October 2024]

[1]    Mr Holmes has sought clarification and if necessary recall of my judgment of 10 September 2024 in this matter. In that judgment I found that Colcroft Holdings Limited (CHL) validly cancelled an agreement with Mr Meadows for the sale and purchase of a property on Waiheke (the Agreement) and made an order to that effect accordingly.1    However,  I  omitted  to  make  a  consequential  order  removing    Mr Meadows’ caveat. Mr Holmes seeks that I make that order, submitting that it is a natural consequence of my order that the Agreement was validly cancelled.

[2]Mr Scampion for Mr Meadows submits that:

(a)If the caveat is removed there is a real and immediate risk that CHL will sell the property to a third party.

(b)While an appeal does not operate as a stay, one may be granted and this is a good case for such a stay as any appeal would be rendered nugatory if the Court ordered the removal of the caveat.

(c)Mr Meadows has a bona fide basis for an appeal — he wants to complete the purchase but a price that reflects the condition of the property and in circumstances where he can provide comfort to his lenders.

[3]    Mr Holmes responds that as yet no appeal has been brought and no stay application has been made, so these matters are irrelevant to whether the order removing should be made.

Assessment

[4]    As noted by Doogue J in Staples v Freeman dealing with the principles of recall:2

[78]   A wider test was set out by Neuburger J in Re Blenheim Leisure (Restaurants) Ltd (No 3), cited with approval by the English Court of Appeal, referred to by the New Zealand Court of Appeal, and applied recently in the New Zealand High Court:

1      Colcroft Holdings Ltd v Meadows [2024] NZHC 2592 at [86].

2      Staples v Freeman [2021] NZHC 3237.

[A]   plain mistake on the part of the courts; a failure of the parties to draw to the court’s attention a fact or point of law that was plainly relevant; or discovery of new facts subsequent to the judgment being given. Another good reason was if the applicant could argue that he was taken by surprise by a particular application from which the court ruled adversely to him and that he did not have a fair opportunity consider.

[5]    I am satisfied the judgment should be recalled. It is not disputed that removal of the caveat is a natural consequence of my finding that CHL validly cancelled the agreement. The omission to include an order removing the caveat was simply an oversight by me.

[6]    There being no formal application for a stay (or at this stage an appeal), I put to one side stay considerations. However, if an application for stay is filed I will convene a telephone conference as soon as I am able.

[7]    Issues as to costs are presently reserved by me in all respects. A judgment will be issued in due course.

[8]    In the result, to be clear, I recall the judgment and add the following sentence to paragraph [86]: “I also make an order removing Caveat number 12663548.1 affecting Record of title NZ97D/649”.

Whata J