Cummins v Body Corporate 172108

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA680/2023
[2024] NZCA 333

BETWEEN	ROBERT JAMES CUMMINS Applicant
AND	BODY CORPORATE 172108 Respondent

Court:	French and Ellis JJ
Counsel:	Applicant in person J B Orpin-Dowell and T J G Allan for Respondent
Judgment: (On the papers)	22 July 2024 at 10.00 am

JUDGMENT OF THE COURT

The application for recall is declined.
___________________________________________________________________

REASONS OF THE COURT

(Given by Ellis J)

On 8 July 2024, this Court declined Mr Cummins’ application for leave to appeal a decision in the High Court refusing to halt the bankruptcy proceedings taken by Body Corporate 172108 (the Body Corporate) against him.[1] A recent decision of Powell J in the High Court relating to the wider dispute between Mr Cummins and the Body Corporate was referred to in the course of our judgment.[2]
[1]Cummins v Body Corporate 172108 [2024] NZCA 303.
[2]Body Corporate 172108 v Meader [2024] NZHC 1280.
On the same day (8 July), Mr Cummins applied for recall of this Court’s judgment, on the grounds that:
(a)at [13] of the judgment, we had misinterpreted Powell J’s decision; and
(b)an observation made at [23] of the judgment compounded this error.
In a further memorandum filed the following day, Mr Cummins elaborated on these points, saying that (in terms of the orthodox recall criteria) the potential impact of these errors on his bankruptcy proceedings constituted “some other very special reason [such that] justice requires that the judgment be recalled”.[3]
[3]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
Separately, and for essentially the same reason, Mr Cummins asked that our judgment not be published until the alleged errors had been corrected.
As Mr Cummins’ second memorandum makes clear, however, his primary concern is not with the two paragraphs identified in the recall application, but with aspects of Powell J’s judgment itself. We consider our summary of what Powell J said (and what might flow from that) was accurate. Whether what Powell J himself said was, itself, accurate, is not a matter we can resolve in the present context. It will no doubt be explored by Mr Cummins elsewhere. In the meantime, this judgment may serve as a record that Mr Cummins disputes the accuracy of the paragraphs complained of.
The application for recall is declined. There is no basis for prohibiting publication of our judgment.

Solicitors:
Grove Darlow & Partners, Auckland for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand heard an application for recall of a decision made in the case of Cummins v Body Corporate 172108. The applicant, Robert James Cummins, sought to challenge the Court's earlier judgment which had declined his application for leave to appeal a High Court decision that refused to halt bankruptcy proceedings against him by Body Corporate 172108. The Court of Appeal, comprising French and Ellis JJ, was presented with Cummins' argument that the Court had misinterpreted a decision by Powell J in the High Court and that this error, compounded by an observation made in the Court's judgment, warranted a recall of their earlier decision.

The legal issues before the Court of Appeal centered on the interpretation of the earlier judgment and whether there were sufficient grounds for recalling it. Cummins contended that the Court's summary of Powell J's decision was inaccurate, and that this misinterpretation, along with an observation made in the judgment, warranted a recall under the recall criteria. Cummins also sought to prevent the publication of the Court's judgment until the alleged errors were corrected. The Court considered whether the recall criteria were met and whether the judgment should be withheld from publication pending resolution of the alleged errors.

The Court of Appeal found that Cummins' arguments did not meet the criteria for recall. They determined that their summary of Powell J's decision was accurate and that the alleged errors did not constitute a sufficient ground for recalling the judgment. The Court also concluded that there was no basis to prohibit the publication of their judgment. As such, the application for recall was declined, and the judgment was not to be withheld from publication. The Court noted that Cummins' primary concern lay with the accuracy of Powell J's decision, which would need to be addressed in a different proceeding.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established