Gay v Bruns Ca193/98

[2000] NZCA 409

IN THE COURT OF APPEAL OF NEW ZEALAND  CA193/98

CA194/98

BETWEEN      DAVID RICHARD INNES GAY, JOHN DEVEREUX RAY, ROGER DAVID CANN, GEORGE TINSLEY WADSWORTH, JOHN LEWIS MANSFIELD, WADSWORTH NORTON SOLICITORS NOMINEE COMPANY LIMITED AND PROVINCIAL FINANCE LIMITED

Appellants

AND                DAVID DAWSON BRUNS First Respondent

AND                PATRICIA ELIZABETH BRUNS Second Respondent

Hearing:  20 March 2000

Coram:Henry J Blanchard J Tipping J

Appearances:             G C Everard & J R Mulligan for the Appellants

First Respondent in person
No appearance of Second Respondent

Judgment:                 23 March 2000

JUDGMENT OF THE COURT DELIVERED BY HENRY J

[1]      The appellants seek to recall a judgment of this Court delivered on 22 June

1999, which dismissed their appeals against two High Court judgments.   The background is a little complex.  Mr Bruns was adjudicated bankrupt on 4

September 1992, and then discharged from bankruptcy on 4 September 1995 by operation of law.  On 24 January 1996, the Official Assignee filed in the

High Court two separate notices of disclaimer of onerous property pursuant to s75 of the Insolvency Act 1967.    The notices included all actions at law personal to Mr Bruns.   Mr Bruns then applied to have vested in him certain of the disclaimed assets, including a right of action against the appellants who were practising as a firm (the Wadsworth Norton proceedings).   Prior to his bankruptcy  such  a  proceeding  had  been  commenced  by  him  claiming damages for negligence and breach of contract.   On 28 March 1996 Morris J made a consent order vesting the disclaimed actions at law in Mr Bruns.   On

15 May 1996 Master Gambrill made certain orders of a like nature vesting property in Mr Bruns, specifically in respect of a series of proceedings in both the High Court and the District Court.   The form of these orders is such that they may also include the Wadsworth Norton proceedings.

[2]      On  10  September  1996  the  appellant  applied  to  review  the  decision  of Morris J.   It was heard by Giles J and dismissed on 10 March 1998.   Special leave to appeal the decision of Giles J was then granted by Randerson J on 7

August 1998, that Judge at the same time granting leave to appeal the judgment of Master Gambrill.    It was those two appeals which were the subject of this Court’s judgment of 22 June 1999, recall of which is now sought.

[3]      In its judgment of 22 June 1999, this Court held that the appellants did not have status under either proceeding to challenge the vesting orders because they were not “aggrieved persons” within the meaning of s8(2) of the Insolvency Act 1967.    In support of the present application, Mr Everard initially submitted that in so far as the appeal against the judgment of Giles J was concerned, this Court was in error in holding that s8(2) rather than s8(1) governed the position.   Whether or not the distinction is valid is however of no practical significance.    Leave to appeal would not be granted unless the appellants could point to a legitimate interest in the subject matter of the vesting.   Here the only interest claimed is that they are adversely affected by Mr Bruns’ ability to promote the claims.     Any such interest would bring them within the category of aggrieved persons for s8(2) purposes, so in the result there is no practical difference whichever subsection applies.     The

preliminary enquiry under both appeals was  whether  the  appellants  were adversely affected by the vesting orders.

[4]      It is clear from the judgment that the status of the appellants to seek relief was at issue, and that was determined against them.   What it is now desired to argue is that an alternative ground for establishing status has now emerged, namely the fact that the appellants are creditors of Mr Bruns, and will be adversely affected because they will be unable to set off against any damages awarded against them, the balance of the debt owed them after taking into account  dividends  received  on  the  now  completed  bankruptcy  (Edmonds Judd v Official Assignee and Hobbs, CA30/99 1 December 1999).    Hence the application to adduce fresh evidence to that effect, a procedure strongly opposed by Mr Bruns.    We are satisfied that leave to bring that evidence should be refused.   It is not fresh, and obviously was available at the time of the  hearing.      The  case  for  the  appellants  was  presented  on  an  entirely different basis.    The original application to recall, lodged shortly after the judgment of 22 June 1999, made no reference to this ground.   The issue did not surface until the amended application was filed on 3 March 2000. Applying general principles, it is in our judgment too late now to promote this separate and alternative ground, one which at all times was available to the appellants.    There has been no supervening change in the law which in the  interests  of  justice  require  overruling  the  need  for  finality.      The appellants chose to run their case on a particular basis, and must now bear the consequences of that.   In the absence of further evidence there is no ground for recall.

[5]      The  application  is  therefore  dismissed.      Mr  Bruns  is  entitled  to  his reasonable disbursements, taking into account his attendance in Court was also in respect of another matter, to be fixed by the Registrar if necessary.

Solicitors

Kensington Swan, Auckland, for the Appellants