Complete Construction Limited v Siemer

[2020] NZHC 1740

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-423

[2020] NZHC 1740

UNDER THE

Insolvency Act 2006

IN THE MATTER OF

the bankruptcy of VINCENT ROSS SIEMER

BETWEEN

COMPLETE CONSTRUCTION LIMITED

Judgment Creditor/Respondent

AND

VINCENT ROSS SIEMER

Judgment Debtor/Applicant

Hearing:	On the papers
Judgment:	17 July 2020

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 17 July 2020 at 3pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Skinners Law, Auckland

Copy to:
Mr V Siemer

Complete Construction Ltd v Siemer [2020] NZHC 1740 [17 July 2020]

[1]    By application dated 18 December 2019, Mr Siemer applied for recall of a judgment I gave on 12 September 2019.1 Mr Siemer also applied for an order that I recuse myself from any further involvement in the bankruptcy proceeding which the judgment creditor (Complete Construction) has commenced against Mr Siemer.

[2]    I dismissed the recusal application in a judgment dated 6 May 2020,2 and I invited Mr Siemer to file written submissions directed to his recall application.

[3]    Mr Siemer has filed written submissions (in the form of an affidavit dated 25 May 2020). Complete Construction advised that it would abide the decision of the Court on Mr Siemer’s applications.

[4]I now give judgment on the recall application.

Background

[5]    The background is covered in the judgment I gave on 12 September 2019 (the judgment Mr Siemer seeks to recall), and in my judgment on the recusal application. I do not need to refer further to the background of the matter, which is traversed in those judgments.

Mr Siemer’s grounds for recall

[6]In his application, Mr Siemer relies on the following grounds:

(1)The Judgment was premised upon a nullity in law and legal fiction; namely, that the Default Judgment Debtor had no rights of courts access but notwithstanding this Smith AJ legally found him financially responsible for attempting to access the courts to defend himself in bankruptcy against the default judgment obtained in a fast track 7-day process from a small private company with which the Default Judgment Creditor had a longstanding fiduciary relationship.

(2)Attached is the Judgment of Palmer J [2019] NZHC 3075 which confirms the prohibition to court access which Smith AJ relied upon no longer existed at the time Smith AJ relied upon it.

1      Complete Construction Ltd v Siemer [2019] NZHC 2273.

2      Complete Construction Ltd v Siemer [2020] NZHC 915.

(3)A miscarriage of justice resulted, as would result anywhere court orders of substance and costs are made against a party on a false legal premise, as occurred here.

Applications to recall a judgment – legal principles

[7]Rule 11.9 of the High Court Rules 2016 provides:

11.9 Recalling judgment

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.

[8]    The leading New Zealand case is Horowhenua County v Nash (No.2), where Wild CJ found that, once delivered, a judgment should normally stand for better or worse, subject to appeal.3 However, His Honour identified three exceptions to that starting position, in the following frequently cited passage from the judgment:4

There are, I think, three categories of cases 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.

[9]In Faloon v Commissioner of Inland Revenue, Asher J said:5

It can be seen from these cases how the third category in Horowhenua County v Nash (No.2) gives the Court the ability to recall a judgment for any special reason which justice requires, and thereby avoids an injustice, or what might otherwise be a more cumbersome and expensive process, such as a retrial.

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.

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

4      At 633.

5      Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 at [12] and [13].

[10]   The second paragraph of that passage from Faloon was referred to with apparent approval by the Court of Appeal in Erwood v Maxted.6

Application of the recall principles in this case

[11]   First, there is no basis on which the second of the exceptions identified by Wild CJ in Horowhenua County v Nash (No.2) might be applied (where counsel has failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance). Mr Siemer has not referred to any statutory provision that was not before the Court on 12 September 2019, and nor does it appear that there was then any authoritative decision of plain relevance which was not drawn to the Court’s attention.

[12]   An issue might be thought to arise on the first of the exceptions identified in Horowhenua County v Nash (No.2) (where, since the hearing, there has been a new judicial decision of relevance and high authority). Mr Siemer relies on the judgment of Palmer J in Siemer v New Zealand Law Society, given on 25 November 2019.7 In that case, the Judge held that Mr Siemer was no longer subject to the banning order made under s 88B of the Judicature Act 1908. Mr Siemer points out that if Palmer J’s view of the relevant statutory provisions is correct, he was no longer a banned litigant when he filed his application to set aside Complete Construction’s bankruptcy notice.

[13]   I do not think this judgment can be regarded as being of “high authority”, in the sense contemplated in Horowhenua County v Nash (No.2). Two other decisions of this Court (Rafiq v Whata & Ors,8 and Siemer v Auckland High Court9) have adopted contrary interpretations of the relevant provisions of the Judicature Act 1908 and the Senior Courts Act 2016, and if those decisions are correct Mr Siemer remained a banned litigant at the time he made his application to set aside the bankruptcy notice. And I note that in Siemer v Auckland High Court, Downs J rejected the reasoning of Palmer J in Siemer v New Zealand Law Society, and followed the reasoning of Venning J in Rafiq.

6      Erwood v Maxted [2010] NZCA 93; (2010) 20 PRNZ 466, at [5].

7      Siemer v New Zealand Law Society [2019] NZHC 3075.

8      Rafiq v Whata & Ors [2019] NZHC 1193.

9      Siemer v Auckland High Court [2019] NZHC 3393.

[14]   I therefore conclude that there is no basis for recall under the first of the exceptions identified by Wild J in Horowhenua County v Nash (No.2). Mr Siemer must bring his application within the third category of case, namely, for some very special reason, the justice of the case requires that the judgment be recalled.

[15]   I do not believe the recall application comes within this category either. I have considered Mr Siemer’s submissions, but the matters he is now challenging are in effect challenges to substantive findings of fact and/or law in the judgment, and as such they are appropriately dealt with by the Court of Appeal on an appeal from the judgment, not by recalling it.10 This is not a case where relevant matters of fact or law were overlooked or otherwise not addressed – Mr Siemer’s real complaint is that I got the law wrong, particularly on the issue of whether there were live issues that could have been the subject of the hearing scheduled for 2 September 2019. In my view, there were substantial live issues for determination at the 2 September 2019 hearing, including whether Mr Siemer’s failure to obtain leave before the setting aside application was filed was an irregularity that did not render the application a nullity. The answer to that question would have one immediate practical implication for the parties (whether Complete Construction would still be in time to commence an adjudication proceeding against Mr Siemer), and it was a question that required an answer. Also, Complete Construction had been put to the trouble of responding to Mr Siemer’s application, and the issue of costs needed to be resolved.

[16]   I determined in the judgment that the failure to obtain leave before the setting aside application was filed was an irregularity that did not render the application a nullity.11 Mr Siemer appears to disagree with that determination, as is his right, but I do not think recall of the judgment is an available remedy for him in circumstances where his complaint relates to matters of fact or law which I addressed (correctly or incorrectly) in the judgment. Mr Siemer’s proper course is to pursue his appeal to the Court of Appeal against the judgment, for which he already has leave.

[17]   It follows from the foregoing that I do not consider any of the grounds for recall have been made out, and that the recall application will be dismissed.

10     Faloon v Commissoner of Inland Revenue, above n 5.

11     Complete Construction Ltd v Siemer, above n 1, at [22].

Result

[18]Mr Siemer’s application for an order recalling the judgment is dismissed.

[19]I make no order for costs.

Associate Judge Smith