Gower - [2020] NZHC 461

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-106

[2020] NZHC 461

UNDER section 32 of the Receiverships Act 1993 and Part 19 of the High Court Rules

IN THE MATTER

of the receiverships of Cone Enterprises (New Zealand) Limited (in receivership and in liquidation) and Shake Shed & Co NZ

Limited (in receivership) and Shake Shed & Co Holdings Limited (in receivership)

AND

IN THE MATTER

BETWEEN

of an application pursuant to section 32 of the Receiverships Act 1993

COLIN ANTHONY LATHAM GOWER and ANDREW JAMES GRACE

Applicants

On the papers:

Counsel:

C R Vinnell for Applicants

Judgment:

10 March 2020

JUDGMENT (NO 2) OF CHURCHMAN J

Introduction

[1] On 3 March 2020, I granted orders in relation to an application by receivers under s 32 of the Receivership Act 1993. Those orders relieved the receivers of the obligation to pay rent for certain premises for a period of 15 working days from the date of the making of the order. The period of 15 days was shorter than the 25-day period sought but the commencement date was what had been asked for.

C A L Gower and A J Grace (No 2) [2020] NZHC 461 [10 March 2020]

[2] By memorandum dated 3 March 2020, the applicants’ counsel has sought recall of my judgment. The reason for the recall application is the counsel had not noticed that the 15th day following appointment of the receivers (and the day on which liability on the receivers for lease payments might commence) expired on 27 February 2020. The receivers are therefore potentially liable for rent between 27 February and 2 March 2020.

[3]The application was made under r 11.9 of the High Court Rules 2016 (HCR).

Relevant law

Recalling judgment (HCR 11.9)

[4] HCR 11.9 states that a Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed. As noted in McGechan on Procedure, r 11.9 has no application once it has been sealed.1

[5] Recalling a judgment is a “serious step” to be taken only in reasonably well identified situations.2 The leading case which identifies when a judgment may be recalled is Horowhenua County v Nash (No 2) (this has been followed and affirmed by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd).3 In Horowhenua County Wild CJ observed: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. 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…

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 Gower

Details

AGLC: Gower [2020] NZHC 461
Case: [2020] NZHC 461
Decision Date: 10 March 2020

CaseChat Overview and Summary

The High Court of New Zealand considered an application for the recall of an earlier judgment concerning the receiverships of Cone Enterprises (New Zealand) Limited, Shake Shed & Co NZ Limited, and Shake Shed & Co Holdings Limited. The applicants, Colin Anthony Latham Gower and Andrew James Grace, sought relief from the obligation to pay rent for certain premises under section 32 of the Receivership Act 1993. The primary legal issue was whether the Court could recall the earlier judgment under rule 11.9 of the High Court Rules 2016, or alternatively, whether the Court could correct the judgment under rule 11.10 for a clerical mistake or accidental omission.

The Court found that the applicants' request for recall under rule 11.9 was not appropriate, as there had been no amendments to statutes or regulations, nor were there any new judicial decisions of higher authority since the judgment was issued. Additionally, the counsel for the applicants had not failed to direct the Court's attention to a relevant legislative provision or precedent. Therefore, the Court needed to determine whether the error constituted a 'very special reason' for recalling the judgment. The Court held that this was not a situation warranting recall, as it was a simple error made by counsel, which would be more appropriately addressed under rule 11.10.

Under rule 11.10, the Court has the discretion to correct a judgment or order if it contains a clerical mistake or error arising from an accidental slip or omission. The Court determined that this rule could indeed be applied to correct a date error resulting from an accidental slip or oversight by the parties. The error in this case, which involved the counsel not appreciating that the 15-day grace period under the Receivership Act had expired, fell within the scope of rule 11.10. Consequently, the Court amended the earlier judgment to reflect the correct commencement date for the period of relief from rent payments.

In conclusion, the Court recalled the earlier decision and amended the relevant paragraph to correct the date, ensuring the relief from rent payments was appropriately aligned with the statutory grace period. This decision underscores the Court's willingness to correct clear errors of this nature, while maintaining the general rule of the finality of judgments.

Orders