Forster v Body Corporate 68792 - [2025] NZHC 1094

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2022-485-802

[2025] NZHC 1094

BETWEEN
CISCA JOHNETTE FORSTER

Applicant

AND

BODY CORPORATE 68792

Respondent

AND

IAIN BRUCE SHEPPARD and JESSICA

JANE KELLOW as receivers of the LINK TRUST (No. 1)

Interested Party

On the papers

Appearances:

Applicant in person

D G Dewar for Respondent

No appearance for Interested Party

Judgment:

8 May 2025

JUDGMENT OF GRICE J

(Application for Recall of judgment)

Introduction

[1] Ms Cisca Johnette Forster, a trustee of the Link Trust (No. 1) (in receivership), seeks to recall a judgment delivered on 16 December 2022.1

[2] The December 2022 judgments (a results and reasons judgment) arose from longstanding disputes between the trustees of the Link Trust (No. 1) on one hand and

1 Two judgments are involved: Body Corporate 68792 v Memelink & Forster [2022] NZHC 3489 [results judgment] and Body Corporate 68792 v Memelink & Forster [2022] NZHC 3498 [reasons judgment].

FORSTER v BODY CORPORATE 68792 [2025] NZHC 1094 [8 May 2025]

Body Corporate 68792 on the other. The Trust owned a number of units in the Body Corporate.

[3] The trustees had taken steps to disrupt the sale of Body Corporate units and had engaged in conduct that risked undermining the Body Corporate’s operations.2 Mr Memelink had also directly contacted insurance brokers and underwriters which risked the insurance cover being withdrawn, leaving the Body Corporate uninsured.3 The insurance was critical to the Body Corporate’s ability to sell units in the property.

[4] These actions prompted the Body Corporate to seek interim injunction orders to restrain the trustees. The Court granted an interim injunction to restrain the trustees from interfering with the insurance arrangements of Body Corporate 68792 on 16 December 2022.

Legal principles

[5] The application for recall is made under r 11.9 of the High Court Rules 2016, which allows recall of a judgment before the formal record of it is drawn up and sealed. The leading statement in relation to applications for recall remains that of Wild CJ in Horowhenua County v Nash (No 2):4
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.

[6] Horowhenua County sets out three categories of cases where recall may be granted:

(a)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.

(b)Where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance.

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

2 The reasons judgment, above n 1, at [8].
3 At [4].
4 Horowhenua County v Nash (No. 2) [1968] NZLR 632 at 633.

[7] The underlying policy is to reconcile the broad ends of justice in relation to the particular case and the desirably of finality in litigation at…

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 1094
Decision Date: 8 May 2025

CaseChat Overview and Summary

The case of Forster v Body Corporate 68792 involves Cisca Johnette Forster, a trustee of the Link Trust (No. 1) (in receivership), who seeks to recall a judgment delivered on 16 December 2022. The judgment resulted from disputes between the trustees of the Link Trust and Body Corporate 68792, with the trustees taking steps to disrupt the sale of Body Corporate units and engaging in conduct that risked undermining the Body Corporate's operations. These actions led the Body Corporate to seek interim injunction orders to restrain the trustees, which were granted.

The legal issues before the Court were whether the application for recall of the judgment should be granted under r 11.9 of the High Court Rules 2016. This rule allows for the recall of a judgment before the formal record of it is drawn up and sealed. The Court considered three categories of cases where recall may be granted, as outlined in Horowhenua County v Nash (No 2). These include cases where there has been an amendment to a relevant statute or regulation, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision, and where for some other very special reason justice requires that the judgment be recalled.

The Court determined that Ms Forster's application for recall did not meet any of the criteria set out in Horowhenua County. The procedural issues raised had little substance, and the interim judgment was never pursued to a final hearing stage, leaving the trustees with the option to appeal. The substantive issues largely reiterated matters already decided in earlier judgments. Ms Forster's allegations concerning the administration of the Body Corporate, the conduct of the receivers, and the actions of Mr Memelink's legal advisers were seen as attempts to relitigate already determined issues. The Court found the application to be an abuse of process and declined the application for recall.

The final orders of the Court were that the application for recall is declined. The procedural issues raised were found to have little substance, and the substantive issues were attempts to relitigate matters already determined in earlier judgments. The Court found that Ms Forster's application was an abuse of the Court’s process.

Orders