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 referred to taking a robust approach3 and said that the exercise could not be focused exclusively on living costs incurred from the date of hearing.

[9]    FMI has been aware of the third defendants’ intention to vary the freezing order to meet living costs. The third defendants have made several previous applications to vary the freezing order to meet living costs. I note that in a memorandum of 31 January 2025 the third defendants again raised the issue of a variation to the freezing order to address living costs for the months of January, February, March and April, even though the formal application may not have been filed until later.

[10]   The costs the Court did not allow on the basis of the reference to forward- looking costs were primarily in relation to costs where the property they related to had been sold.

[11]   However, the short point is that this is not an appropriate case for recall. If the Court is in error in its approach then FMI has a right of appeal.

[12]For those reasons the application for recall is dismissed.

Venning J

3 At [11].