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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Complete Construction Limited v Siemer

Details

AGLC: Complete Construction Limited v Siemer [2020] NZHC 1740
Case: [2020] NZHC 1740
Decision Date: 17 July 2020

CaseChat Overview and Summary

In the High Court of New Zealand Auckland Registry, Complete Construction Limited filed an application for recall of a judgment against Vincent Ross Siemer, who is currently in bankruptcy. Siemer sought to recall the judgment on the grounds that it was premised on a nullity, a miscarriage of justice occurred, and that a recent judicial decision was not considered by the court. The primary legal issue was whether the judgment should be recalled under the exceptions set out in Horowhenua County v Nash (No.2), which permit recall when there has been an amendment to a relevant statute, a new judicial decision of high authority, or for some special reason justice requires it. The court considered whether the second or third exception applied, but found that no such basis existed for recalling the judgment. The court determined that the judgment could not be recalled based on a challenge to the substantive findings of fact and law, and that Siemer's proper recourse was to appeal the judgment to the Court of Appeal. The court dismissed Siemer’s application for recall and made no order for costs.

Orders