De Meyer v Insight Legal Limited

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.

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REASONS OF THE COURT

(Given by Cooper P)

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

The applicants, Kirsty Alice de Meyer and John Kenneth Slavich, sought recall of the Court of Appeal’s judgment from March 28, 2023, which dismissed their application for an extension of time to appeal a High Court judgment. The first respondent was Insight Legal Limited, and other respondents included various Slavich family entities and individuals. The appeal pertained to the High Court’s refusal to allow the applicants to pursue arbitration, an issue that Insight Legal Limited had abandoned during the hearing. The applicants argued that the Court of Appeal's judgment misapprehended their position in the High Court proceedings and sought recall based on the premise that justice required the judgment to be reviewed.

The Court of Appeal examined whether there was any error in its previous judgment, specifically focusing on paragraph [24]. It concluded that there was no misapprehension in the judgment, as Insight Legal Limited and Nic Slavich Limited were the parties that initiated the proceeding in the High Court and subsequently abandoned the arbitration application. The Court also noted that the applicants seemed to misunderstand the legal process, believing that their status as defendants allowed them to dictate the plaintiffs' pleadings. The Court of Appeal found no grounds for recalling its judgment, as it correctly interpreted the facts and legal issues presented in the original proceedings.

The Court of Appeal dismissed the application for recall and ordered the applicants to pay one set of costs to the third, fifth, sixth, and seventh respondents for the interlocutory application, on a band A basis, along with usual disbursements. The decision emphasised the correctness of the original judgment and the applicants’ misapprehension regarding the legal process. The Court’s ruling reinforced the principle that parties cannot dictate the pleadings of opposing parties in litigation.

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