FM Custodians Limited v Hannan - [2018] NZHC 3079

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-485-0983

[2018] NZHC 3079

BETWEEN
FM CUSTODIANS LIMITED

Applicant

AND

PATRICK BERNARD HANNAN also

known as PATRICK BERNARD CHRISTOPHER HANNAN

Respondent

Hearing: 10 October 2018

Appearances:

F B Barton and M B Couling for the Applicant (by audio visual link)

Mr P B Hannan in person (by audio visual link)

Judgment:

26 November 2018

JUDGMENT OF ASSOCIATE JUDGE SMITH

This judgment was delivered by me on 26 November 2018 at 3.00pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors / Counsel:
Anderson Lloyd, Dunedin

Copy to:
Mr P B Hannan

FM CUSTODIANS LTD v HANNAN [2018] NZHC 3079 [26 November 2018]

[1] On 17 May 2018 I issued a judgment (the judgment) in which I dismissed an application by the judgment creditor (FM) to adjudicate the judgment debtor (Mr Hannan) bankrupt.1

[2] FM now applies under r 11.9 of the High Court Rules for an order recalling the judgment. That application is opposed by Mr Hannan.

Applications to recall judgments – legal principles

[3]Rule 11.9 of the High Court Rules 2016 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.

[4]The leading authority on recalling a judgment remains that of Wild CJ in

Horowhenua County v Nash (No 2), where the learned Judge said:2

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.

[5] In this case, FM relies on the second and third recall situations identified by the Judge in Horowhenua County. First, FM says that counsel failed to direct the Court's attention to legislative provisions which were plainly relevant. Secondly, it says that the judgment included reasoning that was not put to counsel at or after the hearing (or not sufficiently put3), and that the interests of justice require that the judgment be recalled to enable the parties to be heard on those matters.

1      FM Custodians Ltd v Hannan [2017] NZHC 1097.
2      Horowhenua County v Nash (No 2) [1968] NZLR 632 (HC) at 633, applied by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76.
3      In a Minute issued after the hearing, in which I invited further submissions from…

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.

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Details

Case: [2018] NZHC 3079
Decision Date: 26 November 2018

CaseChat Overview and Summary

FM Custodians Limited applied to the High Court of New Zealand for an order recalling its earlier judgment dismissing an application to adjudicate the judgment debtor, Patrick Bernard Hannan, bankrupt. FM argued that the judgment should be recalled because it failed to consider relevant legislative provisions and because the reasoning included matters that were not put to counsel at or after the hearing. Mr Hannan opposed the application.

The court considered whether the judgment should be recalled under the second and third situations identified in Horowhenua County v Nash. FM argued that the court failed to consider relevant sections of the Property Law Act 2007 and the Receiverships Act 1993. The court found that these provisions were plainly relevant to the application of Clayton's case and were not drawn to the court's attention. The court concluded that the failure to consider these provisions justified recalling the judgment.

The court made an order recalling the judgment and awarded FM costs on the application to recall the judgment on a 2B basis, with disbursements to be fixed by the Registrar.

Orders