Gavigan v Eichelbaum - [2017] NZCA 442

IN THE COURT OF APPEAL OF NEW ZEALAND

CA237/2016
CA357/2016
[2017] NZCA 442

BETWEEN

ANTHONY JOHN GAVIGAN
First Appellant

JOINT ACTION FUNDING LIMITED
Second Appellant

AND

JOHN REVANS EICHELBAUM
Respondent

Court:

Kós P, French and Asher JJ

Counsel:

A R Gilchrist and G R Abdale-Weir for Appellants
Respondent in person

Judgment:

(On the papers)

6 October 2017 at 4.00 pm

JUDGMENT OF THE COURT

The applications for recall of judgment are declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

This supplementary judgment deals with two matters:
(a)an application by Mr Eichelbaum for recall of this Court’s substantive judgment of 19 September 2017;[1] and
(b)a question relating to costs, which in effect is a further recall application.

Recall application

The relevant principles in relation to recall applications are set out in the judgment of this Court in Erwood v Maxted.[2] There, this Court endorsed the following remarks of the High Court in Faloon v Commissioner of Inland Revenue:[3]

While the third category [of the judgment of Wild CJ in Horowhenua County v Nash (No 2)[4]] is not defined with particularity in the judgments, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.

First ground for recall

[1]Gavigan v Eichelbaum [2017] NZCA 412.

[2]Erwood v Maxted [2010] NZCA 93 at [3]–[5] and [23].

[3]Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19, 832 (HC) at [13]; cited in Erwood v Maxted, above n 2, at [5].

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

Mr Eichelbaum submits that he was not given the opportunity to argue a key point made in [58] of the substantive judgment that the High Court judgment was “wholly dependent” upon finding misleading conduct in trade.
There is nothing in that complaint. The conclusion of this Court at [58] is an accurate account of the effect of [116], [131] and [147] of the High Court judgment.[5] That is, that but for the judge’s conclusion that Mr Gavigan’s conduct was misleading and deceptive in terms of s 9 of the Fair Trading Act 1986, he would not have found his conduct oppressive in terms of s 174 of the Companies Act 1993.
[5]E v G [2015] NZHC 824.
Nor is there any natural justice issue: the basis on which the High Court judge found oppression was at the heart of the appeal. It was the subject…

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.

Continue reading Gavigan v Eichelbaum

Details

AGLC: Gavigan v Eichelbaum [2017] NZCA 442
Case: [2017] NZCA 442
Decision Date: 6 October 2017 at 4.00 pm

CaseChat Overview and Summary

The case of Gavigan v Eichelbaum before the New Zealand Court of Appeal involved a dispute between Anthony John Gavigan and John Revans Eichelbaum. Eichelbaum filed an application for recall of the Court’s substantive judgment issued on 19 September 2017. The case was heard by Kós P, French, and Asher JJ. The primary legal issue before the Court was whether the substantive judgment should be recalled based on the arguments presented by Eichelbaum regarding the findings of the High Court. Additionally, the Court had to determine if the costs order should be recalled based on a Calderbank offer made by Eichelbaum.

The Court considered the principles governing recall applications, which require the discretion to be exercised with circumspection and not as a substitute for appeal. The Court evaluated Eichelbaum's arguments that he was not given the opportunity to address specific findings made by the High Court. The Court found that Eichelbaum's complaints were unfounded as the substantive judgment accurately reflected the High Court's findings, and Eichelbaum's arguments were based on issues he did not prevail on. The Court also examined the Calderbank offer and concluded that it was not an offer made in full and final settlement but merely to discontinue proceedings, and thus, there was no basis to recall the costs order.

The Court of Appeal declined both the application for recall of judgment and the question relating to costs. The Court held that the substantive judgment and the costs order were correctly made, and there was no basis to recall them. The appeal applications were thus dismissed.

The Court's final order was that the applications for recall of judgment were declined, and the substantive judgment and costs order remained in place.

Orders