Commercial Factors Limited v Scenic Hotel Group Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA495/2020
[2022] NZCA 580

BETWEEN	COMMERCIAL FACTORS LIMITED Appellant
AND	SCENIC HOTEL GROUP LIMITED Respondent

Court:	Miller, Clifford and Courtney JJ
Counsel:	P J Dale KC and A J Steel for Appellant JBM Smith KC and JLW Wass for Respondent
Judgment: (On the papers)	28 November 2022 at 11.30 am

JUDGMENT OF THE COURT

A The application for recall is granted.
BWe make no order for costs on the recall application.

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REASONS OF THE COURT

(Given by Courtney J)

In a judgment delivered on 8 July 2022 this Court dismissed the appeal brought by Commercial Factors Limited (Factors) and the cross-appeal brought by Scenic Hotel Group Limited.[1] It also remitted the issue of costs in the High Court to the High Court for determination. The appellant has applied to recall the judgment in respect of the order remitting the question of costs.
[1]Commercial Factors Ltd v Scenic Hotel Group Ltd [2022] NZCA 300.
When the appeal and cross-appeal were initially filed, the issue of costs had not been determined in the High Court. Osborne J subsequently delivered a costs decision.[2] Factors filed an amended notice of appeal signalling its intention to appeal the costs decision. Unfortunately, no citation was provided for the decision, the decision was not included in the case on appeal and neither party’s submissions referred to the decision itself. The substantive decision of this Court was issued on the incorrect basis that no costs decision had been made.
[2]Commercial Factors Ltd v Scenic Hotel Group Ltd [2020] NZHC 2407.
This is a case in which recall is plainly justified. The judgment is recalled and is to be reissued with the appeal against the High Court costs decision addressed.
We make no order for costs on the recall application.

Solicitors:
Kootelle Lawyers, Auckland for Appellant
Meares Williams, Christchurch for Respondent

CaseChat Overview and Summary

Commercial Factors Limited appealed against a decision of the High Court which had dismissed its claim against Scenic Hotel Group Limited. Scenic Hotel Group Limited cross-appealed against the High Court's refusal to award it costs. The Court of Appeal dismissed the appeal and cross-appeal but remitted the issue of costs to the High Court. Commercial Factors Limited subsequently applied to recall the judgment because it was unaware that the issue of costs had been decided in the High Court. Commercial Factors Limited argued that the Court of Appeal's dismissal of its appeal and cross-appeal was based on a material error of fact, that is, that the Court was unaware that the issue of costs had been decided in the High Court.

The Court of Appeal considered that the application for recall was plainly justified because the judgment was based on a material error of fact. The Court noted that the substantive decision was issued on the incorrect basis that no costs decision had been made. The Court considered that it was appropriate to recall the judgment in these circumstances and to reissue it with the appeal against the High Court costs decision addressed. The Court made no order for costs on the recall application.

This case is a reminder that courts have the power to recall judgments in certain circumstances, particularly where the judgment was based on a material error of fact. In this case, the Court of Appeal considered that the error was material and that the application for recall was plainly justified. The Court's decision to recall the judgment and reissue it with the appeal against the High Court costs decision addressed ensures that the parties have an opportunity to properly address the substantive issues in the appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established