Dobson v Milloy

[2015] NZHC 182

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-463-000403 [2015] NZHC 182

BETWEEN

KERRY BRYAN DOBSON

Plaintiff/Counterclaim Defendant

AND

HUGH MILLOY and HELEN RUTH MILLOY as Trustees of the HUGH MILLOY FAMILY TRUST

First Defendants/Counterclaim Plaintiffs

HUGH MILLOY and HELEN RUTH MILLOY as Trustees of the HELEN MILLOY FAMILY TRUST

Second Defendants/Counterclaim
Plaintiffs

CLUSEVAU HOLDINGS LIMITED Counterclaim Defendant

Hearing:

(On the papers)

Counsel:

Paul Dalkie and Greg Stringer for the Plaintiff/Counterclaim

Defendant

Robert Hollyman for the First and Second Defendants/ Counterclaim Plaintiffs

Judgment:

16 February 2015

RESERVED JUDGMENT OF MOORE J

This judgment was delivered by  on 16 February 2015 at 2:30pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Date:

DOBSON v MILLOY & ORS [2015] NZHC 182 [16 February 2015]

[1]      On 19 December 2014, I issued a judgment staying the execution of my earlier judgments pending the outcome of the appeals against those decisions.  I did so because I was of the view there was a risk that the judgment sum would be lost if it was paid to the plaintiff, rendering the defendants' rights on appeal nugatory.

[2]      Mr Dobson has now applied for recall of that decision on the basis that I did not deal explicitly with his argument that the judgment sum could be put in his solicitor’s trust account pending the outcome of the appeal.

[3]      Rule  11.9  of  the  High  Court  Rules  provides  that  a  Judge  may  recall  a judgment at any time before it is sealed. The situations in which recall is appropriate are well known and are set out in the decision of Wild CJ in Horowhenua County v Nash (No 2):1

Generally speaking,  a judgment  once  delivered  must  stand for  better  or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[4]      Counsel for Mr Dobson submits that the present case falls into the third category,   as,   counsel   submits,   I   overlooked   a   matter   which   required   my determination.   Counsel further argues that recall is warranted because I did not conduct an oral hearing.  He submits he had requested such a hearing.

[5]      While I did not expressly deal with the possibility of placing the money with Mr Dobson's solicitor in my written judgment, this does not mean that I did not consider this possibility.   In determining the matter, I concluded that there was no advantage to this course of action, and granted the defendants' application for a stay.

[6]      As for the question of an oral hearing, I am of the view that no such hearing was required.  Nor has counsel advanced any reason why such a hearing would have

1 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, approved of in Saxmere Co Ltd v

Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76.

altered my decision.  Furthermore, the defendants correctly point out that while Mr Dobson's counsel notified the court that he was available for an oral hearing, no formal request for such was made.

[7]      I decline to recall my judgment.   Counsel for Mr Dobson has raised no grounds on which a different decision should be reached and I am satisfied that the

decision should stand.

Moore J

Solicitors:

Chapman Tripp, Auckland
Inder Lynch, Papakura