Etg Holdings Limited v First Eastern Holdings Limited

[2012] NZHC 3071

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-000228 [2012] NZHC 3071

BETWEEN  ETG HOLDINGS LIMITED First Plaintiff

ANDETG BROKERAGE LIMITED Second Plaintiff

ANDFIRST EASTERN HOLDINGS LIMITED First Defendant

ANDFE INVESTMENTS LIMITED Second Defendant

ANDTHATT KIONG SHIM Third Defendant

ANDTONY SUN Counterclaim Defendant

Hearing:         (on the papers)

Counsel:         B D Gustafson for Plaintiffs/Respondents

M Heard and K Phelan for Defendants/Applicants

Judgment:      19 November 2012

DECISION OF VENNING J On application to recall

This judgment was delivered by me on 19 November 2012 at 2.15 pm, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Harrison Stone, PO Box 1297, Shortland Street, Auckland 1140

Lee Salmon Long, PO Box 2026, Shortland Street, Auckland 1140

Copy to:            B Gustafson, PO Box 1297, Shortland Street, Auckland 1140

ETG HOLDINGS LTD V FIRST EASTERN HOLDINGS LTD HC AK CIV-2012-404-000228 [19 November

2012]

[1]      In  a  judgment  delivered  on  14  November  2012  the  Court  directed  the plaintiffs to provide security for costs.  Counsel for the plaintiffs has now filed an application seeking to recall the judgment.    That is opposed by the defendants/respondents.

[2]      The points said to support the recall are first, the finding that even if the shares were worth $300,000, there was unlikely to be enough left to pay the defendants’ costs after the plaintiffs’ own legal costs were met failed to take account of Mr Sun’s evidence that the shares were unencumbered and that ETH could and would meet any security from the $300,000 worth of shares.

[3]      Next, it is said the Court’s observation that an order that the plaintiffs’ claim be funded otherwise than by resort to the $300,000 would be difficult if not impossible to enforce was not a matter the plaintiffs had had an opportunity to address.[1]

[1] ETG Holdings Ltd & Anor v First Eastern Holdings Ltd & Ors HC Auckland CIV-2012-404-

000228, 14 November 2012 at [16].

[4]      The circumstances that support a recall application under r 11.9 are well established. They are:

(a)      where, since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and higher authority;

(b)      where counsel has failed to direct the Court’s attention to a legislative

provision or authoritative decision of plain relevance;  or

(c)      where,  for  some  other  very  special  reason,  justice  requires  the judgment be recalled.

[5]      Mr Gustafson submitted the present case falls into the third category.

[6]      I am unable to accept that submission.  As the Court observed in Faloon v

CIR:[2]

... the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.

[2] Faloon v CIR (2006) 22 NZTC 19,832 at [13].

[7]      Further, a failure by the Court to deal with each and every argument by counsel is not of itself, even if that were the position, a reason for recall:  R v Nakhla (No 2);[3]   Unison Networks Ltd v Commerce Commission[4]

[3] R v Nakhla (No 2) [1974] 1 NZLR 453 (CA).

[4] Unison Networks Ltd v Commerce Commission [2007] NZCA 49 (CA).

[8]      The  Court  was  well  aware  that  Mr  Sun  had  deposed  the  $300,000 shareholding in FEI was held unencumbered by the plaintiffs.  The Court expressly recorded that evidence at [14] of the judgment.

[9]      As to the suggestion of the difficulty of enforcement of the order suggested by counsel, I do recall making that observation in passing during the course of submissions.  But in any event, the suggestion that counsel advanced in support of the  application  for  recall  that  the  counterclaim  defendants  would  be  guilty  of contempt if the breach of such an order in my mind simply highlights the practical difficulty of enforcement of such an order.  The defendants should not have to go to those lengths.

Summary/result

[10]     I do not accept there is any basis for recall either in substance or in principle. The application for recall is dismissed with costs to the respondents on a 2B basis for

the memorandum filed.

Venning J