De Meyer v Insight Legal Limited

[2023] NZCA 370

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA358/2022
 [2023] NZCA 370

BETWEEN	KIRSTY ALICE DE MEYER AND JOHN KENNETH SLAVICH Applicants
AND	INSIGHT LEGAL LIMITED First Respondent NIC SLAVICH LIMITED Second Respondent PETER STEVEN SLAVICH Third Respondent ANTHONY NICOLAS SLAVICH AND PETER STEVEN SLAVICH AS TRUSTEES OF THE ESTATE OF NICHOLAS SLAVICH Fourth Respondents FRANA VAN HELLEMOND Fifth Respondent MARICA SLAVICH Sixth Respondent NICHOLAS SLAVICH Seventh Respondent SLAVICH PROPERTIES LIMITED Eighth Respondent

Court:	Cooper P and Brown J
Counsel:	K A de Meyer and J K Slavich in Person No appearance for First, Second, Fourth and Eighth Respondents T M Braun for Third, Fifth, Sixth and Seventh Respondents
Judgment: (On the papers)	16 August 2023 at 11.00 am

JUDGMENT OF THE COURT
(Recall)

AThe application for recall of judgment [2023] NZCA 82 is declined.

BThe applicants must pay one set of costs to the third, fifth, sixth and seventh respondents costs for an interlocutory application on a band A basis, together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper P)

1. The applicants apply for recall of this Court’s judgment delivered on 28 March 2023[1] declining their application under r 29A of the Court of Appeal (Civil) Rules 2005 for an extension of time to appeal from a judgment of the High Court.[2]

   [1]De Meyer v Insight Legal Ltd [2023] NZCA 82.

   [2]Insight Legal Ltd v Slavich [2022] NZHC 1050.

2. The focus of the recall application is paragraph [24] of our judgment, which states:

   The applicants apparently wish to pursue on appeal the argument that, in accordance with the interlocutory minute of Katz J, they should have been allowed to pursue the issue of an order requiring arbitration.  But Insight abandoned that contention at the hearing and no other party (including the present applicants) had raised it in a pleading. 

3. The applicants contend that that paragraph “misapprehended” what was and who was involved in the High Court proceeding.  For that reason they contend that recall is justified pursuant to the third limb in Horowhenua County v Nash (No 2), there being a very special reason why justice requires that the judgment be recalled.[3]

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

4. We do not consider that there was any error in paragraph [24] of our judgment.  It was Insight Legal Ltd and Nic Slavich Ltd that commenced the proceeding in the High Court, and it was those parties which abandoned the application for an order requiring arbitration.  There was no other relevant pleading.  As the third, fifth, sixth and seventh respondents submit in opposition to the recall application, it is the applicants who are suffering from a misapprehension that their position as defendants permits them to dictate the pleadings of the plaintiffs.

5. The application for recall of our judgment is declined.

6. The applicants must pay one set of costs to the third, fifth, sixth and seventh respondents for an interlocutory application on a band A basis, together with usual disbursements.

Solicitors:
Braun Bond & Lomas Ltd, Hamilton for Third, Fifth, Sixth and Seventh Respondents