Fitzgerald v IAG New Zealand Ltd - [2019] NZHC 632

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2016-404-000779

[2019] NZHC 632

BETWEEN
STEPHEN PATRICK FITZGERALD, NICOLA MARY FITZGERALD AND HAMISH ALEXANDER SCOTT AS

TRUSTEES OF 111 INNES ROAD, SAINT ALBANS, CHRISTCHURCH

Applicants

AND

IAG NEW ZEALAND LIMITED

Respondent

Hearing: 26 March 2019

Appearances:

S P Rennie for Applicants

I J Thain and C J Jamieson for Respondent

Judgment:

29 March 2019

JUDGMENT OF GENDALL J

FITZGERALD v IAG NEW ZEALAND LIMITED [2019] NZHC 632 [29 March 2019]

Introduction

[1] This is an application by the applicants to recall a judgment I gave in this proceeding on 20 December 2018 (“the Judgment”). That judgment followed a trial in the High Court at Christchurch from 15 to 19 October 2018.

[2] The application to recall the Judgment with supporting material was filed on 29 January 2019. It was opposed by the respondent IAG New Zealand Limited (IAG) on 7 February 2019.

[3] A short time after, on 11 February 2019, the applicants also filed in the Court of Appeal a notice to appeal the Judgment. Following an application for leave to appeal which was granted on 4 March 2019, the substantive appeal remains to be heard at this point.

Legal principles

[4] Rule 11.9 High Court Rules addresses the issue of recalling a judgment and provides:

11.9 Recalling judgment

A judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[5] The principles governing recall of a judgment are well settled and not in dispute here. They are set out in the leading statement in New Zealand of Wild CJ in Horowhenua County v Nash (No. 2)1 as follows:
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.

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

[6] Here, the applicants rely upon the third category of case in which a Court may recall a judgment that being the situation where, for some very special reason, justice requires that to occur. This third very special reason category has been described as a limited category. The Court of Appeal in Nottingham v Real Estate Agents Authority2 adopting Faloon v CIR3 stated:
The third category is not defined with particularity in any judgment. However, it is quite clear that the discretion to recall must be…

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.

Keep reading for free

Create a free CaseChat account to read Fitzgerald v IAG New Zealand Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2019] NZHC 632
Decision Date: 29 March 2019

CaseChat Overview and Summary

The applicants, Stephen Patrick Fitzgerald, Nicola Mary Fitzgerald, and Hamish Alexander Scott, as trustees of 111 Innes Road, Saint Albans, Christchurch, sought to recall a judgment given by the High Court in relation to a dispute with IAG New Zealand Limited. The applicants argued that the judgment was based on incorrect expert evidence and should be recalled as justice required it under the third category of cases where recall may be justified. IAG opposed the application, asserting that the judgment was not based on incorrect evidence and that the issues should be dealt with on appeal.

The court considered the principles governing the recall of a judgment, emphasizing that the threshold for recall is high and that the recall jurisdiction should be exercised sparingly. The court noted that the recall jurisdiction does not extend to challenges of substantive findings of fact and law in the judgment, nor to recasting arguments previously given. The court also highlighted that the recall jurisdiction is not a substitute for appeal and that applications for recall will fail if they seek to relitigate matters already considered.

The applicants argued that the expert evidence provided by IAG's structural engineer, Mr Lewis, led the court to an incorrect assumption regarding the similarity of repairs. They contended that the judgment should be recalled as it was based on this incorrect evidence. The applicants also argued that the judgment should be recalled as it had become a precedent for settlements and repair of rubble foundations in similar situations.

IAG maintained that the judgment was not based on incorrect evidence and that the applicants could not be prejudiced as the declarations made in the judgment were conditional on whether building consent or appropriate exemptions would be issued for IAG's proposed repair works. IAG also argued that the issues raised by the applicants should be dealt with on appeal.

The court concluded that the judgment was not based on incorrect evidence and that the applicants were protected from any possible injustice. The court held that the threshold for recall of a judgment had not been met in this case and dismissed the application to recall the judgment.

Final orders were made dismissing the application to recall the judgment and costs were awarded to IAG.

Orders