Delegat v Norman - [2013] NZHC 3485

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-004444 [2013] NZHC 3485

BETWEEN JAKOV NIKOLA DELEGAT aka JIM DELEGAT as trustee of the Jim Delegat Business Trust
First Plaintiff
BOAT 93 HOLDINGS LIMITED (In liquidation)
Second Plaintiff

ANDCHRISTOPER JOHN NORMAN Defendant

ANDJULIE ANNE SALTHOUSE Third Party

Hearing: 11 October 2013

Appearances: P Davison QC and CT Patterson for Plaintiffs D Chisholm QC and T Mullins for Defendant E Werry for Third Party

Judgment: 17 December 2013

JUDGMENT OF WOOLFORD J

[Re: application to recall judgment of 4 December 2012]

This judgment was delivered by me on Thursday, 19 December 2013 at 2.30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Jones Young, Auckland Lowndes Associates, Auckland Simpson Dowsett Mackie, Auckland LeeSalmonLong, Auckland
P Davison QC, Auckland
D Chisholm QC, Auckland
C T Patterson, Auckland
G P Blanchard, Auckland

DELEGAT & ANOR v NORMAN & ANOR [2013] NZHC 3485 [17 December 2013]

Introduction

[1] On 4 December 2012, I issued a judgment in which I dismissed a claim by the plaintiffs against the defendant. Over nine months later, on 18 September 2013, the plaintiffs filed an application for recall of my judgment and an order that the proceedings be reheard.

[2] The application arose in the following way. In my judgment of 4 December

2012, I noted that costs should follow the event and if counsel were unable to agree I would receive memoranda. Counsel were unable to agree and during the course of negotiation, counsel for the defendant provided counsel for the plaintiffs with a copy of extracts from counsel’s time and attendance records. Counsel’s time and attendance records allegedly disclosed that:

(a) The third party’s primary brief of evidence was briefed and prepared in whole or in part by counsel for the defendant. That work was undertaken at the defendant’s cost and with the defendant’s approval and with the knowledge and involvement of the third party’s counsel;

(b)Junior counsel for the defendant, when briefing and/or preparing the third party’s brief of evidence, communicated directly with her regarding the contents of her affidavit sworn 14 May 2010, the contents of which were materially unfavourable to the defendant and which the third party recanted in her brief of evidence;

(c) During the hearing itself, counsel for the defendant continued to draft supplementary evidence for the third party and, together with the defendant, met with the third party and her counsel to discuss the third party’s evidence and trial strategy; and

(d) Settlement discussions occurred between the defendant and the third

party at the conclusion of the third party’s oral evidence.

[3] During the hearing itself, the third party was asked, when under cross- examination by counsel for the plaintiffs, whether the defendant’s lawyers had

prepared her brief of evidence at some point or had some input into it. The third party responded denying any such involvement. She was also asked whether she had any assistance with her brief of evidence to which she responded that…

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 Delegat v Norman

Details

AGLC: Delegat v Norman [2013] NZHC 3485
Case: [2013] NZHC 3485
Decision Date: 17 December 2013

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Delegat v Norman involved a dispute between the plaintiffs, Jakob Nikola Delegat and Boat 93 Holdings Limited, and the defendant, Christopher John Norman, with Julie Anne Salthouse as a third party. The plaintiffs sought to recall and rehear the proceedings after alleging misconduct by the defendant's counsel during the trial, including improper involvement in the preparation of the third party's evidence and contact with subpoenaed witnesses. The core legal issue was whether the alleged misconduct warranted the recall of the judgment under the third category of cases, where justice requires recall for a very special reason.

The court held that even if the allegations were true and the conduct was improper, it did not meet the high threshold for recalling a judgment. The court found that the defendant's credibility was established independently of the third party's evidence and that the evidence from subpoenaed witnesses did not contradict the plaintiffs' case or influence the outcome. Furthermore, the plaintiffs' claims regarding the defendant's directorship and breaches of duty did not rely on the third party's testimony, and the court's findings remained unchanged regardless of any alleged misconduct by the defendant's counsel.

Ultimately, the application for recall was dismissed, and costs were to follow the event.

Orders