Commissioner of Inland Revenue v Robertson

[2012] NZHC 1215

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-007526 [2012] NZHC 1215

BETWEEN  COMMISSIONER OF INLAND REVENUE

Plaintiff

ANDSTUART DOUGLAS ROBERTSON Defendant

Hearing:         28 May 2012

Counsel:         N H Malarao/K Kuang for plaintiff

R A Weir for defendant (given leave to withdraw) S D Robertson defendant in person

Judgment:      31 May 2012

JUDGMENT OF ASSOCIATE JUDGE ABBOTT

This judgment was delivered by me on 31 May 2012 at 4.50pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

N H Malarao/K Kuang, Meredith Connell, PO Box 2213, Shortland Street, Auckland

Clive Gardner Law, PO Box 5386, Mt Maunganui 3170

Also to:

S D Robertson, 235 Royal Road, Massey, Auckland, New Zealand

COMMISSIONER OF INLAND REVENUE V STUART DOUGLAS ROBERTSON HC AK CIV 2010-404-

007526 [31 May 2012]

[1]      The defendant, Mr Robertson, is an insolvency practitioner.   In April and May 2010 the shareholders of Hokianga Farm Management Limited, RVB Limited and Hukatere Coastal Trustees Limited appointed him liquidator of those companies.

[2]      The  Commissioner  of  Inland  Revenue  commenced  this  proceeding  in November 2010 seeking a declaration that Mr Robertson’s appointment was invalid, and an order that he be removed as liquidator for lack of independence and conflict of interest.   Mr Robertson filed a statement of defence denying any lack of independence or conflict of interest.   Mr Robertson’s defence was struck out, by consent, on 8 March 2012.  As a consequence of that order, the Commissioner has sought judgment in terms of his substantive application.

[3]      Mr Robertson has since applied to recall the consent order.  He contends that he gave his consent under a mistake as to the effect of the order on the substantive application.   He says that he had instructed his counsel to negotiate terms for his resignation, and he thought the striking out was part of an agreement on terms for resignation.

Representation

[4]      Mr Robertson was represented by Mr M Dixon at the hearing at which the consent order was made.  Subsequent to that hearing he engaged Mr R A Weir as counsel (in part because Mr Dixon was to give evidence as to the basis of his instructions to consent to the order).

[5]      At the start of the hearing, Mr Weir applied for leave to withdraw as counsel. He said that his instructions were not complete, and that his relationship with Mr Robertson had broken down to such an extent that it was impossible for him to continue to act.   He said that he had come to the view that Mr Robertson’s case would be “complicated” by his continuing to act (which I accepted as meaning that it could be prejudiced).

[6]      Mr Weir said that he was unable to disclose any detail of the circumstances for reasons of privilege, but he was unaware of email correspondence sent by Mr

Robertson to the Court last Friday, advising that Mr Weir had withdrawn after a dispute  over  non-payment  of  his  fee.    The  correspondence  also  refers  to  other matters, which are no doubt part of the apparent breakdown of the relationship.  Mr Weir accepted that this correspondence was a waiver of privilege in respect of these matters.  I do not need to state the matters in this judgment.  It is sufficient to say that I accept that they evidence a breakdown in their relationship.

[7]      Mr Robertson was not present when Mr Weir sought leave to withdraw.  He had sent a message to the Court earlier in the morning to say that he was intending to appear, but was running 20 minutes late.  The hearing was adjourned to 10.30 am to give Mr Robertson time to appear.   When the hearing resumed at 10.30 am, Mr Robertson  had  not  arrived.    I  gave  Mr  Weir  leave  to  withdraw,  accepting  his statement that the exchanges between the parties made it impossible for him to continue to act.  I also took the view that the matter was relatively straight-forward and Mr Robertson would be able to advance his case in person (he would be able to use the written synopsis of argument already filed by Mr Weir).  Mr Malarao, for the Commissioner, had previously said that the Commissioner would abide the decision of the Court.

[8]      Mr Robertson entered the Court room at 10.38 am, after Mr Weir had been given leave to withdraw.  He was informed of Mr Weir’s withdrawal, and that leave had been granted only after the matter had been stood down for 30 minutes to allow time for Mr Robertson to appear.

[9]      Mr Robertson stated that he wished to pursue his application.  The hearing was adjourned (this time to 11.30 am) to allow Mr Robertson time to read the respective synopses of argument, which he had not seen before arriving at Court. The hearing recommenced at 11.30 am, with Mr Robertson representing himself.

The procedural history

[10]     The  Commissioner  commenced  the  substantive  proceeding  in  November

2010 and applied for directions as to service.   Immediately after it was served Mr Robertson took issue with a proposal that it be served on the companies’ creditors (he contended that matters pleaded were untrue and would prejudice his reputation

as an insolvency practitioner).  A timetable was set for filing any opposition to the application for directions.

[11]     Following the first call Mr Robertson filed both an application to strike out the  Commissioner’s  substantive  claim,  and  a  statement  of  defence  (the  latter pursuant to a direction by the Court).

[12]     Both  applications  came  before  the  Court  on  26  May 2011  for  defended hearing.   It was apparent early in the hearing that Mr Robertson was advancing matters which could only be dealt with at a substantive hearing.   Mr Robertson accepted this, and withdrew his application.  The parties then reached agreement on terms for resolving the Commissioner’s application for directions as to service.

[13]    The matter came back before the Court in July 2011 (after the agreed arrangements for service were completed), when orders for discovery were made. By this time Mr Robertson had engaged counsel (Mr M Dixon) to represent him.

[14]     Mr Robertson failed to comply with the timetable for providing discovery. When the matter next came before the Court, on 18 October 2011, Mr Robertson had filed (belatedly) an affidavit of documents, but had not addressed a number of issues raised by the Commissioner over that discovery.   The timetable was reset and the Commissioner was awarded costs for the appearance.

[15]     Mr Robertson did not respond to the issues raised by the Commissioner within the timeframe that his counsel had indicated.   The Commissioner filed an application for further and better discovery.  That application came before the Court on 30 November 2011, by which time Mr Robertson had not filed any opposition. His counsel informed the Court that he did not wish to oppose the application but sought further time to provide the discovery being sought.   A timetable for compliance was set, and an order made that if Mr Robertson failed to comply with the further timetable his defence to the substantive proceeding would be struck out, and the Commissioner would be at liberty to seal judgment in accordance with the prayer for relief in his substantive proceeding.  Another order for costs was made in favour  of  the  Commissioner  in  respect  of  that  appearance.    Mr  Robertson  was ordered to pay both awards of costs by 21 December 2011.

[16]     Mr  Robertson  served  affidavits  on  15  December  2011,  in  purported compliance  with  the  Court  order.    Mr  Robertson’s  affidavit  was  missing  every second page.  The Commissioner also took the view that it was not in accordance with the terms of the order made on 30 November 2011.  Moreover, Mr Robertson did not pay the costs as ordered.

[17]   After  endeavouring  unsuccessfully  to  have  matters  rectified,  the Commissioner applied to strike out Mr Robertson’s defence, and to enter judgment in accordance with the prayer for relief in his claim, in keeping with the terms of the “unless” order made on 30 November 2011.  The Commissioner took this step as he accepted that there could be room for argument as to whether the affidavits filed by Mr Robertson properly complied with the order. Counsel filed with the application a substantial memorandum setting out the matters with which Mr Robertson had not complied to demonstrate the areas of non-compliance.  In addition the Commissioner sought the order on the basis that Mr Robertson had not paid the costs.

[18]   The Commissioner’s application was given its first call in a previously scheduled case management conference before me on 8 March 2012.  On 6 March

2012, Mr Dixon had filed a memorandum setting out Mr Robertson’s position.  Mr Robertson does not dispute that Mr Dixon sent him a copy of that memorandum, to confirm his instructions, before it was filed and served.  The memorandum (under the heading “Application To Strike Out Statement of Defence”) reads:

2.Counsel for the Defendant, Mr Robertson, has received from the Plaintiff an application to strike out the statement of defence and an application for costs.

3.        The  Defendant  does  not  oppose  the  application  to  strike  out.

Correspondence had already been entered into to bring this matter to a conclusion.

4.Annexed hereto and marked “A” is a copy of an email sent to the Plaintiff on 16 January 2012 together with the reply received from the Plaintiff.

5.In the email, Counsel for the Defendant asked that proceedings be brought to an end and that no further costs be incurred.

6.That is still the position held by the Defendant as confirmed by email last week, a copy of which is annexed hereto and marked “B”. In that email, concerns raised by the Plaintiff as to costs incurred by the  Defendant  in  his  role  as  liquidator  are  addressed  by  the Defendant.  Mr Robertson confirmed again that he has received no

compensation  or  payment  in  his  role  as  liquidator[s]  of  the companies.  The Plaintiff sent a further fax on 2 March 2012, which is annexed hereto and marked “C”.  The Defendant replied to this on

5 March by e-mail forwarded to the Plaintiff on the morning of 6

March, which reply is annexed hereto and marked “D”.

7.The Defendant no longer has any interest in performing his role as liquidator.

8.The Defendant, however, maintains that he has complied with the discovery requirements of the Plaintiff and the timetabling orders of the Court.  He maintains that Isolve Limited had ceased business and been deregistered for GST purposes two years before he accepted the appointment as liquidator.

9.He advises that he has been forced to seek work in Australia to pay outstanding costs incurred and  has  no  other  savings.    Given  his desire to comply and compromise it is submitted that there is no need for further costs awards.

10.It is submitted that the defence is struck out and that there be no further award of costs.

[19]     It  is  apparent  from  the  correspondence  attached  to  the  memorandum (privilege in which has been waived by its production in the memorandum) that Mr Robertson wished to resolve the whole proceeding by resigning, and by the Commissioner withdrawing his application without requiring payment of the costs orders or the Commissioner seeking any further costs.  It is equally clear that early on 6 March 2012 the Commissioner informed Mr Robertson, through counsel, that Mr Robertson’s proposal was not accepted and that he intended to proceed with his application to strike out.

[20]     After conveying the Commissioner’s position to Mr Robertson on 6 March

2012, counsel for the Commissioner filed a memorandum noting that Mr Robertson had until the following day to file any opposition and requesting orders in terms of the strike out application, and entry of judgment in accordance with his substantive claim if no opposition was filed.   In the event that opposition was filed the Commissioner  sought  directions  for  hearing  of  the  strike  out  application.    Mr Dixon’s memorandum was filed later the same day.  Counsel for the Commissioner filed a further memorandum on 7 March 2012, noting Mr Robertson’s position, and asking for the defence to be struck out and judgment to be entered on the claim.

[21]     Mr Robertson was represented by Mr Dixon at that conference.  He had not filed notice of opposition to the application.  Mr Robertson’s position was recorded in the minute of the conference as follows:

[3]       The defendant has not opposed the application.   He has appeared today  by  counsel,  and  previously  filed  a  memorandum advising  that  he consents to the strike out, although he opposes an order for the costs also being sought.

[22]     Mr  Robertson’s  defence  was  struck  out,  by  consent,  at  the  conference. Orders were also made, in terms of the Commissioner’s substantive application, declaring the defendant’s appointment to be invalid and appointing new liquidators.

[23]     Subsequent to the ending of that conference, the conference was reconvened and  the latter orders were recalled  and  rescinded  because of  a doubt  as  to  the jurisdiction to make such orders in Chambers.   The substantive application was adjourned for hearing in open Court the following day. An appearance by Mr Dixon, as counsel for Mr Robertson, was excused at that further hearing, as it was perceived that Mr Robertson no longer had an interest in the matter (separate directions were given in respect of the dispute over costs).

[24]     Prior to the commencement of the hearing the following day, Mr Dixon filed a   memorandum   on   behalf   of   Mr   Robertson,   stating   that   there   was   a misunderstanding between him and Mr Robertson concerning Mr Robertson’s consent.  When the matter was called, Mr Weir appeared for Mr Robertson (having just received instructions), and advised that Mr Robertson had not appreciated that consenting to the strike out would lead to a finding that his appointment as liquidator was invalid.  Mr Weir’s instructions were to seek recall of the orders striking out his defence.  Directions were given for Mr Robertson to file an application, leading to the defended hearing today.

Legal principles for recall

[25]     Mr Robertson’s application is brought under r 11.9 of the High Court Rules:

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[26]     Although the rule is expressed as an unfettered discretion, the Courts have exercised  that  discretion  in  accordance  with  general  principles.    The  leading statement of those principles is that of Wylie C J in Horowhenua County v Nash: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 in which a judgment not perfected may be recalled – first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and 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 recalled.

[27]     The present application relies on the third ground, namely, that for some very special reason justice requires that the judgment be recalled.   In Faloon v Commissioner of Inland Revenue this Court noted that there had been no attempt by Courts to define the circumstances where this ground could apply:2

[13] While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.

[28]     In Ashe v Tauranga Marina Society this Court discussed the policy factor underlying the limited grounds for recall:3

The policy indicated in that extract from Horowhenua County v Nash is one which seeks to reconcile the broad ends of justice in relation to the particular case and the desirability of finality in litigation at first instance.  I take into account the general policy for r 4 which enjoins a construction of the Rules so  as  to  secure  the  just,  speedy,  and  inexpensive  determination  of proceedings or interlocutory applications.   That policy is more consistent with the objective of finality in fully litigated cases than a proposition that cases ought to be reopened because of an afterthought.

[29]     The Court of Appeal reaffirmed “the rarity of legal justification for recalling judgments” in Ngahuia Reihana Whanau Trust v Flight.4

1 Horowhenua County v Nash (No.2) [1968] NZLR 632 (SC) at 633.

2 Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19.832 (HC) at [13].
3 Ashe v Tauranga Marina Society (1991) 4 PRNZ 89 (HC) at 90.

4 Ngahuia Reihana Whanau Trust v Flight CA 23/03, 26 July 2004 at [3].

The opposing contentions

[30]     The grounds stated in the application are:

(i)       The said order was made on the basis that it was a consent order. (ii)        The said order has not been perfected.

(iii)     Consent to the said order was withdrawn prior to the said order being perfected.

(iv)     That the said order is imperfect as it was based on a mistake. (v)    That it is in the interests of justice.

(vi)     Upon the grounds set out in the [affidavits in support].

[31]     In  his  affidavit  of  support  of  recall  Mr  Robertson  said  that  he  had  not “properly considered” Mr Dixon’s memorandum when he gave his consent and did not appreciate that the effect of giving the consent was that the Commissioner’s claim “succeeded in its entirety”.  He says he thought the consent was part of the terms that had been under negotiation (in the correspondence between the parties), being that he would resign in favour of a liquidator nominated by the Commissioner, and that would be an end of the matter.

[32]     In a supporting affidavit, Mr Dixon says that his memorandum of 6 March

2012  was  filed  “under  a misapprehension  that  the defendant  knew  what  would happen when his defence was struck out”, and as a result of that misapprehension he confirmed at the conference on 8 March 2012 that Mr Robertson did not oppose the application.   He confirmed the content of the memorandum he filed immediately after the order was made (on 9 March 2012) that there was a misunderstanding between himself and Mr Robertson, and he accepts that he did not properly explain to Mr Robertson “the effect of the strike out”.

[33]     Mr Dixon was cross-examined on his memoranda and affidavit.   He was unable to say, with any certainty, whether he had sent the Court’s minutes and the strike out application and supporting memorandum to Mr Robertson, but adds that it was his standard practice to forward documents to his client.  He acknowledged that it was clear from the application and supporting memorandum what the Commissioner was seeking, and the reasons for the application but said that the

focus in his discussions with Mr Robertson had been centred around negotiations for Mr Robertson’s resignation and avoiding any further costs orders rather than the terms of the application.   He also acknowledged that he was aware of the consequences of giving the consent (in terms of the orders that were likely to be made on the strike out application), and said that he confirmed his instructions to consent, in the conference, with that knowledge.  He said that the misapprehension as to the effect of the defence being struck out was Mr Robertson’s and not his, but made it clear that he had not appreciated Mr Robertson’s lack of understanding.

[34]     Counsel for the Commissioner argued that this was a matter of “regretted choice” on the part of Mr Robertson, but submitted that even if the Court accepted that Mr Robertson gave his instructions to consent as a result of misunderstanding as to what would follow (perhaps as a consequence of miscommunication between him and Mr Dixon) that was not sufficient reason for recalling the order and putting the Commissioner to the further costs and delay that would follow from reinstatement of the defence.  In support of that general proposition he submitted:

(a)      These were not extraordinary circumstances: counsel will frequently consent to applications, and a misunderstanding as to the effect of the consent did not qualify as “a very special reason”.   A test of that nature would require the Court to look into the discussions between counsel and client, which the Courts are properly reluctant to do.

(b)It is an essential plank of the judicial system that the Court is able to rely on representations by counsel.  As a consequence of the removal of immunity for legal practitioners in relation to the conduct of litigation5 Mr Robertson has a means of recourse if there was a misunderstanding on the part of Mr Robertson which resulted from a failure on the part of Mr Dixon as counsel.

(c)      Even if Mr Robertson’s alleged mistake could justify a recall, the present case did not warrant it when established principles (such as finality in litigation and ensuring proceedings were dealt with speedily

and inexpensively) were taken into account.

5 Lai v Chamberlains [2006] NZSC 70, [2007] 2 NZLR 7.

(d)It was not unfair to Mr Robertson to refuse a recall.  He had made it clear that he did not wish to continue in the role, and any cost implications that might flow were a normal part of any litigation. Conversely, the Commissioner has already been prejudiced by unnecessary delays as a result of the tactics adopted by Mr Robertson, with attendant cost implications.

(e)      The Commissioner had a strong case for strike out, even without the consent: there is no question that Mr Robertson was in breach of the “unless” order by failing to pay the costs, and the Commissioner had demonstrated in counsel’s memorandum in support that the affidavits filed by Mr Robertson did not comply with the order made on 30

November 2011.  Moreover, Mr Robertson had not filed a notice of opposition and was now out of time for doing so.

Discussion

[35]     Counsel for the Commissioner referred me to several cases where judgments have been recalled for mistakes by the Court,6  and to other cases where recall has been considered on the grounds of a mistake by the Court, but not ordered as the alleged mistakes were not made out.7    These cases support the view that a judicial mistake is a very special reason justifying recall.

[36]     However,  counsel  did  not  refer  me  to  any  case  where  recall  has  been considered, let alone ordered, on the grounds of a mistake by one of the parties to the litigation.

[37]     In the written submissions prepared by Mr Weir before his withdrawal, and adopted by Mr Robertson, reliance was placed on longstanding authority to the effect that the Court has inherent jurisdiction to set aside a consent order for mistake.8

Although the application before the Court is made under r 11.9 of the High Court

Rules (rather than inherent jurisdiction) and r 11.9 deals exclusively with the ability

6 Levin v Rastkar [2011] NZCA 399 (CA); Erwood v Glasgow Harley (2007) 18 PRNZ 336 (CA);

Zwicker v Zwicker HC Auckland CIV-2010-404-3497, 31 August 2010.

7 Tri Media International Ltd v The Wellington Company Ltd HC Wellington CIV-2008-485-2768, 15

July 2009; The Party Bus Co Ltd v Attorney-General [2012] NZHC 445.

8 Huddersfield Banking Company Ltd v Henry Lister & Son Ltd [1895] 2 CH 273.

of a Judge to recall a judgment, counsel for the Commissioner referred me to two cases, which set out principles in relation to the setting aside of consent orders which assist in the considerations under the third limb of r 11.9:9

(a)      In Carrell v Carrell, Cooke J (as he then was) declined to set aside consent  orders  made  in  the  Magistrate’s  Court  on  the  basis  that counsel had consented without the client’s authority.   One of the reasons for the decision was that the Court is entitled to rely on the authority of counsel and it is normally a matter between counsel and his client if counsel exceeds his actual authority:10

...in normal circumstances, if counsel appears for a party and informs the Court on behalf of that party that he consents to a certain order, the Court is entitled to rely on the authority of counsel – as indeed, is the other party... If counsel is exceeding his actual authority, that is normally a matter between him and his client (or his instructing solicitor) and does not affect his apparent or ostensible authority in the eyes of the Court of the other party.

(b)In  Waitamata  City  Council  v  MacKenzie,  the  Court  of  Appeal overturned a decision of the High Court setting aside consent orders that Mr MacKenzie be dismissed as a party and that he pay costs.  Mr MacKenzie  argued  that  his  counsel  had  not  been  authorised  to consent, and did so under a mistaken view of the effect of an earlier discharge of proceedings between Mr MacKenzie and the Council. The Court of Appeal was unanimous in finding that (in the words of

Casey J) that:11

Whatever the grounds for seeking to set aside the order, the ultimate question is whether such a step is called for in the interests of justice, having regard to all the circumstances of the case.   This principle is reflected in s 7(3) of the Contractual Mistakes Act 1977 giving the Court jurisdiction to make such order “as it thinks just” in respect of a questioned agreement; it is also apparent in those decisions turning  on  counsel’s  mistake  or  lack  of  authority.    As Vaughan Williams J put it in the Court of Appeal in the context of the Huddersfield Banking Co Ltd case the Court

9 Carrell v Carrell [1975] 2 NZLR 441 (SC); Waitamata City Council v MacKenzie [1988] 2 NZLR

242 (CA).

10 At 445-446.

11 At 249-250.

must be satisfied “that relief can be given with a due regard to the just rights of others”.

(citations omitted)

[38]     As is apparent from the authorities in relation to recall already identified, and as restated succinctly in the decision of this Court in Tri Media International Ltd v The Wellington Company Ltd the ultimate criterion in all cases must be the overall interests of justice.12

[39]     The essence of Mr Robertson’s case comes down to the fact that he did not appreciate what would follow from his defence being struck out.  I am in no doubt that he was consenting to the strike out, and hoped that that could be achieved without further costs against him (because he had not opposed the application) but will accept, for the purpose of this application, that he did not turn his mind to the specific orders that would then be made on the Commissioner’s substantive application.  To this extent there is some merit to the argument of the Commissioner that this application is a result of “a regretted choice”.

[40]     I have difficulty with Mr Robertson’s contention that his consent was given on the misunderstanding that the Commissioner had accepted his proposal that the substantive application was determined by Mr Robertson tendering his resignation and that no further costs would be sought.   The correspondence that Mr Dixon attached to his memorandum of 6 March 2012 demonstrates clearly that there was correspondence between Mr Dixon and Mr Robertson the day before, that there was no agreement at that time, and that the Commissioner informed Mr Dixon prior to Mr Dixon filing his memorandum that the Commissioner was proceeding with the application to strike out (in other words that there was no agreement on Mr Robertson’s proposal).    There is no suggestion that Mr Robertson sought confirmation that his proposal had been accepted before Mr Dixon filed his memorandum, and there was still the better part of two days before the conference in which he could have established that.

[41]    I consider it highly unlikely that Mr Robertson had not been given the application  or  its  supporting  memorandum,  which  clearly  spelt  out  what  the

Commissioner was seeking, including entry of judgment in terms of his substantive

12 Tri Media International Ltd at [11].

application following striking out of the defence.  Whether Mr Dixon should have spelt out to Mr Robertson the precise consequences of striking out the defence is not a matter that I can or need to determine on this application.  It is a matter for them and, in the circumstances of this case, should not affect the Commissioner’s rights.

[42]     In the latter respect, both the Court and the Commissioner should be entitled to rely on consent conveyed by Mr Robertson through his counsel.  On the strength of that consent, the Commissioner did not pursue a well-founded application.

[43]     There could have been several reasons influencing Mr Robertson’s decision to consent to the strike out, but what is clear is that he did not wish to contest it, and was anxious to avoid any further costs in relation to it.  He does not dispute that he had already made a decision that he did not wish to continue as liquidator.

Decision

[44]     I have come to the view that the overall interests of justice do not warrant an order for recall of my order striking out Mr Robertson’s defence.  There are good policy reasons for limiting the circumstances in which recall will be given, namely the need for finality, and the objective of determining disputes in a cost effective and timely manner.  The issues arising out of the liquidation of these companies need to be addressed, and Mr Robertson has made it clear that he has no wish to continue as liquidator (it could also be said that it is no longer appropriate that he should do so, given that he is now residing in Australia).

[45]     I  accept  that  in  some  circumstances  a  mistake  as  to  consequences  of consenting to an order could meet the high threshold for recall.   However, in the wider context of these liquidations and the Commissioner’s substantive application, and in the specific circumstances leading to the strike out application and the giving of Mr Robertson’s consent, I am not persuaded that Mr Robertson’s failure to appreciate the consequences constitutes a “very special reason” and that the overall justice of the case requires recall.

[46]     The application for recall is dismissed.

[47]     The Commissioner having succeeded on the application is entitled to costs. The parties did not address me on costs.  I see no reason to depart from an award on a scale 2B basis, with disbursements to be fixed by the Registrar.   If either party seeks an award on any other basis, or there is any dispute over the actual costs that follow, the party seeking the different order or taking issue with the quantum is to file and serve a memorandum within 10 working days, with any memorandum in opposition to be filed and served within a further five working days.

[48]   Counsel for the Commissioner invited me to enter judgment on the Commissioner’s application in accordance with the statement of claim.  For reasons I have already conveyed to the parties, I consider that the substantive  application should  be called  and  determined  in  open  court.   The substantive  application  is

adjourned to the Miscellaneous Companies List at 11.45 am on 6 June 2012.

Associate Judge Abbott