Gough v Ram Custodian Limited - [2012] NZHC 2926

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-006645 [2012] NZHC 2926

BETWEEN H D GOUGH Plaintiff

ANDRAM CUSTODIAN LIMITED, J R STRAHL AND B W M TOTHILL First Defendants

ANDR W RAYMOND, D A H BROWN AND B W M TOTHILL
Second Defendants

ANDR W RAYMOND, D A H BROWN AND B W M TOTHILL
Third Defendants

Hearing: 26 October 2012

Appearances: N W Ingram QC and M T Kyriak for Plaintiff
R A Rose and A S Ross for First Defendants
T C Weston QC for Second and Third Defendants

Judgment: 6 November 2012

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 6 November 2012 at 3:00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

Solicitors: Kyriak Law Solicitors, 4/40 Eden Crescent, Auckland 1010
Fax: (09) 623-0540 – Email:mtk@kyriaklaw.co.nz
Duncan Cotterill, P O Box 5, Christchurch 8140
Fax: (03) 379-7097 – A V Foote
Chapman Tripp, P O Box 2206, Auckland 1140
Fax: (09) 357-9099 – A S Ross

Counsel: N W Ingram QC, P O Box 6569 Wellesley Street, Auckland 1141
Fax: (09) 379-2226
T C Weston QC, P O Box 3976, Christchurch 8140
Fax: (03)374-5707

GOUGH V RAM CUSTODIAN LTD & ORS HC AK CIV-2011-404-006645 [6 November 2012]

Introduction

[1] The defendants have applied for orders recalling my judgment of 30 August

2012 in which I made findings regarding the proper construction of the 1987 Deed of Variation that governed the appointment of trustees to the Head Trust of the Tracy Thomas Gough estate and its two sub-trusts, Blair Gough Sub-trust and the Owen Gough Sub-trust.[1] For the reasons I come to shortly I consider that I should recall my judgment.
[1] Gough v Ram Custodian Limited [2012] NZHC 2926

[2] Recall of a judgment is permitted under r 11.9 of the High Court Rules at any time before a formal record of the judgment is drawn up and sealed. The circumstances in which a judgment may be recalled are, however, limited. The leading authoritative statement is still that of Wild CJ in Horowhenua County v Nash (No. 2):[2]
[2] Horowhenua County v Nash (No.2) [1968] NZLR 632 at 633 (SC) reaffirmed in Unison Networks
Ltd v Commerce Commission [2007] NZCA 49 at [10].

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.

[3] Since the statement in Horowhenua County v Nash the Court of…

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: [2012] NZHC 2926
Decision Date: 6 November 2012

CaseChat Overview and Summary

The defendants in Gough v Ram Custodian Limited applied for recall of a previous judgment made by Justice Courtney on 30 August 2012. The original judgment concerned the proper construction of the 1987 Deed of Variation, which governed the appointment of trustees to the Head Trust of the Tracy Thomas Gough estate and its two sub-trusts. The defendants sought recall on the grounds that the judgment was uncertain as to whether Justice Courtney had considered arguments regarding trustee appointments other than by a deed of appointment. The plaintiffs had agreed that the hearing would only deal with the validity of the appointments in issue, with the consequences of invalidity to be left for another hearing. However, Justice Courtney had wrongly understood that the first hearing required determination only of whether the appointment had been made by a deed of appointment and in accordance with the procedures set down in the Deed of Variation.

The court had to decide whether there were sufficient grounds to recall the judgment under r 11.9 of the High Court Rules. The recall of a judgment is permitted at any time before a formal record of the judgment is drawn up and sealed, but the circumstances in which a judgment may be recalled are limited. The court noted that a judgment once delivered must stand for better or worse, subject to appeal. However, there are three categories of cases in which a judgment not perfected may be recalled: where there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and where for some other very special reason justice requires that the judgment be recalled. The court also noted that the Court of Appeal has consistently emphasised the care with which recall applications should be considered and the rarity of legal justification for recalling judgments.

Justice Courtney found that the circumstances justified a recall of the judgment so that all the arguments advanced could be properly considered and a decision on them articulated for the purposes of any appeal. The court concluded that since the original judgment had not properly considered the wider argument being advanced by the first defendants, the proper course was to recall the judgment. The court also noted that this was a case in which justice did require the recall of the judgment, as important issues that counsel wished to have addressed had not been addressed. The court made an order for the judgment to be recalled and scheduled a further hearing to argue the issues that were not determined. The court also consolidated the proceeding with another proceeding related to the same issue, which was to be managed by Justice Courtney. The court directed that a telephone conference with counsel from both proceedings be arranged to discuss the steps to be taken in relation to the consolidated proceeding and that a one-day fixture be allocated for the hearing of submissions on the issues to be determined. The court also set deadlines for the filing of submissions by the defendants and the plaintiffs.

Orders