FMI Building Innovation Limited v Li - [2025] NZHC 826

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-2366

[2025] NZHC 826

BETWEEN
FMI BUILDING INNOVATION LIMITED

Plaintiff

AND

LIN LI

First Defendant

XI SHEN
Second Defendant

LIN LI and XI SHEN as Trustees of the Oka Tree Family Trust

Third Defendants

Hearing: (On the papers)

Judgment:

8 April 2025

JUDGMENT OF VENNING J

[Application for recall]

This judgment was delivered by me on 8 April 2025 at 3.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Capstone Law Ltd, Auckland
Russell van Hout Ltd, Auckland

FMI BUILDING INNOVATION LIMITED v LIN LI [2025] NZHC 826 [8 April 2025]

[1] On 2 April 2025, the Court delivered a judgment on the third defendant’s application for a variation of the freezing order in this case.1

[2] The plaintiff, FMI Building Innovation Limited (FMI) applies to recall the judgment. Counsel seeks to have the Court reconsider whether the living costs ordered to be released for January and February 2025, might be released given the Court had recorded that the jurisdiction is a forward-looking one.

[3] It is unnecessary to convene a hearing to deal with the application which must be dismissed.

[4] The principles to apply on an application for recall are settled.2 In particular, in Horowhenua County v Nash (No 2) Wild CJ noted:

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 R v Smith, the Court of Appeal referred to revisiting decisions in exceptional circumstances.

[6]None of the above criteria apply to the present case.

[7] Counsel submits that, despite referring to the jurisdiction as forward-looking, the Court allowed a variation to the freezing order for living expenses in January and February when the application for variation was only filed on 5 March 2025.

[8] The Court’s reference to the jurisdiction being a forward-looking one picked up on counsel’s submission to that effect as discussed before Muir J at an earlier

1 FMI Building Innovation Ltd v Li [2025] NZHC 754.
2 Rae v Commissioner of Police [2023] NZSC 156; Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC); Unison Networks Ltd v Commerce Commission [2007] NZCA 49; and R v Smith [2003] 3 NZLR 617 (CA).

hearing. Nevertheless, I note that Muir J took a flexible approach. In his minute of 28 February 2025 Muir J…

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: [2025] NZHC 826
Decision Date: 8 April 2025

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, heard an application from FMI Building Innovation Limited to recall a previous judgment that had been delivered on April 2, 2025, concerning the variation of a freezing order in the case of FMI Building Innovation Limited v Li. FMI sought to have the Court reconsider the decision to release living costs for January and February 2025, arguing that the Court's reference to its forward-looking jurisdiction should have precluded such a release. The application for recall was dismissed by Venning J, who found that none of the established criteria for recalling a judgment applied in this case.

The primary legal issue before the Court was whether the principles for recalling a judgment applied in this instance, particularly given the Court's previous reference to its forward-looking jurisdiction. Venning J considered the principles for recall, as outlined in Horowhenua County v Nash (No 2), which include amendments to statutes or regulations, overlooked relevant legal provisions or decisions, or exceptional circumstances requiring justice. The Court found that none of these criteria were met in FMI's application. The Court noted that while it had referred to its forward-looking jurisdiction, it had also taken a flexible approach in allowing variations for living expenses, as demonstrated by Muir J's approach in a previous hearing. Venning J emphasised that if the Court's approach was in error, FMI had the right to appeal.

Venning J dismissed the application for recall, concluding that the criteria for such an application were not satisfied. The Court reiterated that once a judgment is delivered, it generally must stand, subject to appeal, unless there are exceptional circumstances warranting a recall. In this case, Venning J found that FMI's dissatisfaction with the Court's approach did not constitute such exceptional circumstances, and thus the application was dismissed. This decision underscores the importance of adhering to the established principles for recalling judgments and the limited circumstances under which such an application may succeed.

Orders