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: [phone] – Email:[email protected]
Duncan Cotterill, P O Box 5, Christchurch 8140
Fax: [phone] – A V Foote

Chapman Tripp, P O Box 2206, Auckland 1140

Fax: [phone] – A S Ross

Counsel:             N W Ingram QC, P O Box 6569 Wellesley Street, Auckland 1141

Fax: [phone]

T C Weston QC, P O Box 3976, Christchurch 8140

Fax: [phone]

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 Appeal has consistently emphasised the care with which recall applications should be considered and the “rarity of legal justification for recalling judgments”.[3]

[3] Unison Networks Ltd v Commerce Commission.

[4]      The essential reason for the applications is uncertainty on the face of the judgment as to whether I had considered arguments regarding trustee appointments other than by a deed of appointment.  The parties had agreed that the hearing would deal only with the validity of the appointments in issue, with the consequences of invalidity being left for another hearing.  I had understood (wrongly as it turns out)

that  the  first  hearing  required  determination  only  of  whether  appointment  had

properly been made by a deed of appointment and in accordance with the procedures set down in the Deed of Variation.

Application by second and third defendants

[5]      I deal first with the applications by the second and third defendants because, after lengthy argument, Mr Ingram QC, indicated that he would not maintain his opposition to them.

[6]      Mr Weston QC, for the second and third defendants, argued that although it appears from my opening comment at [62] that I expected to deal with the question of appointment other than by a deed at the next hearing, my conclusions in that paragraph and at [71](c) suggest that I did not consider that possibility.  During the course of argument I accepted that I had not considered and determined Mr Weston’s original argument regarding appointment other than by deed.  Mr Ingram responsibly indicated that, whilst not consenting, he would not maintain his opposition to the application.  The circumstances clearly justify a recall of the judgment so that all the arguments advanced can be properly considered and a decision on them articulated for the purposes of any appeal.

Application by first defendant

[7]      Mr Ingram did, however, maintain his opposition to the first defendants’ application for recall.  Ms Rose, for the first defendants, submitted that they had put their case regarding the validity of Ram Custodian Ltd’s appointment on a trust powers basis rather than a contract basis but that it was unclear from my judgment as to  whether  in  fact  that  argument  had  been  considered  and  dismissed  or  not considered at all.  The defendants’ concerns include the risk that ambiguity in the judgment might result in their being precluded from having their argument dealt with at the next hearing.

[8]      It is evident from my earlier comments that I wrongly apprehended the scope of the issues I was required to decide and therefore did not properly consider the

wider argument being advanced by the first defendants.   In these circumstances, I

consider that the proper course is to recall the judgment.

Result and next steps

[9]      In the present case, it is evident that important issues that counsel wished to have addressed have not been addressed. This is certainly a matter of regret from my point of view and tends to demonstrate the risks involved in splitting issues in a case for separate determination.   I am satisfied that this is a case in which justice does require me to recall my judgment and I make an order accordingly.

[10]     There is to be a further hearing at which the issues that were not determined will be argued.  There is, however, no suggestion that my conclusions regarding the construction of the Deed of Variation or my factual findings should be revisited. Counsel  agreed  on  the  framing  of  the  issues  to  be  determined  of  the  recall applications being granted. They are:

(a)      In relation to the Head Trust, are the conclusions reached at [38] – [41] of my original judgment altered by the application of a trust powers or equitable maxims analysis?

(b)In relation to the sub-trusts is a deed of appointment required or can appointment can be effected by other means and, if so, whether there has been an appointment by such other means.

[11]     Mr Ross pointed out that even once all of the issues in the present proceeding have been determined the parties will still need direction on future steps to be taken. Separate proceedings have been brought under CIV-2012-404-3798 to address that issue and counsel expressed a wish to have both proceedings managed by one judge.

On the first defendants’ application the two proceeding have now been consolidated.[4]

[4] Ram Custodian and Ors v Raymond and Ors CIV-2012-404-3798, 26 October 2012.

Since I am already seised of this proceeding and familiar with the issues I will continue to manage both.

[12]     I direct that:

(a)      A  telephone  conference  with  counsel  from  both  proceedings  be arranged as soon as possible to discuss the steps to be taken in relation to the consolidated proceeding;

(b)A one day fixture be allocated as soon as possible in consultation with counsel for the hearing of submissions on the issues described at [10] above;

(c)      The defendants file submissions five days before the allocated hearing date and the plaintiff file submissions in reply three days before the

allocated hearing date.

P Courtney J