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 thirdly, where for some other very special reason justice requires that the judgment be recalled.

[6]                 There are therefore three situations where a judgment may be recalled under  r 11.9:

1      McGechan on Procedure (online ed, Thomson Reuters) at [HR11.09.01(7)].

2      McGechan on Procedure, above n 1, at [HR11.09.01(1)].

3      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122.

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

(a)since the judgment there has been an amendment to a statute or regulation, or a new judicial decision of higher authority;

(b)where counsel have failed to direct the Court’s attention to a legislative provision or precedent which is clearly relevant; or

(c)when for some ‘very special reason’ justice requires a recall.

[7]                 The first two situations clearly do not apply in this case. Consequently, the only ground the applicants are able to rely on would be the third ground; justifying a recall on the basis of a ‘very special reason’. The Court of Appeal in Erwood v Maxted has been relatively explicit that any accidental slips or omissions are to be dealt with under r 8 of the Court of Appeal (Civil) Rules (the analogous Court of Appeal version of HCR 11.10), while applications to recall judgments are to follow the guidelines set out in Horowhenua County v Nash (No 2) and are to be applied “strictly”.5

[8]                 Cases where it is appropriate to invoke HCR 11.9 normally involve situations such as:

(a)the Court failing to determine an issue that was properly put to it;6

(b)misapprehending counsel’s submissions;7

(c)the Judge overlooking a matter that a party had applied to amend the orders it sought;8

(d)the Judge’s orders not reflecting the Judge’s findings;9

(e)matters having changed subsequent to the delivery of the judgment affecting the outcome;10 and

5      Erwood v Maxted [2010] NZCA 93 at [23].

6      Brake v Boote (1991) 4 PRNZ 86 (HC).

7      Cynotech Securities Ltd v People Ltd (No 2) HC Auckland CIV-2008-404-1559, 4 March 2009.

8      Matua Finance Ltd v Bank of New Zealand HC Auckland CP490/04, 4 August 1995.

9      Works Civil Construction Ltd v Does Not Compute Corporation Ltd  HC Wellington CP46/92, 19 November 1992; & Sealegs International Ltd v Zhang [2018] NZHC 3186.

10     Pine Tree Park Ltd v North Shore CC (No 2) HC Auckland HC26/96, 12 August 1996.

(f)the parties overlooking the need to extend the date for compliance with a statutory demand, in proceedings to set the demand aside.11

Correction of an accidental slip or omission (HCR 11.10)

[9]High Court Rule 11.10 provides that:

(1)A judgment or order may be corrected by the court or the Registrar who made it, if it

(a)contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or

(b)is drawn up so that it does not express what was decided and intended.

(2)The correction may be made by the court or the Registrar, as the case may be,—

(a)on its or his or her own initiative; or

(b)on an interlocutory application.

[10]              The rule reflects the Court’s inherent jurisdiction to correct errors in orders as a result of a slip or accidental omission. The Court’s power is discretionary and is sparingly exercised; the general rule as to the finality of judgments is not to be lightly weakened.12 What is sought to be corrected must be the result of a slip; the rule may not be used where a more convenient form of order is subsequently thought of.13

[11]              The authorities are unclear as to whether this rule can be applied to correct a date that is a clerical mistake/error arising from an accidental slip or oversight from the parties themselves. HCR 11.10 refers to a clerical mistake arising from an accidental slip/omission “whether or not made by an officer of the Court”, which indicates that the slip/omission may come from the parties themselves (as opposed to the Judge). The cases referred to in McGechan on Procedure do not explicitly state or refer to a case where the mistake was from the parties/a party, rather than an officer of

11     Queensland Maintenance Services (NZ) Ltd v Queensland Maintenance Services (Pty) Ltd (in liq) [2015] NZHC 784.

12     BNZ v Mulholland (1991) 4 PRNZ 299 (HC). See also McGechan on Procedure (online ed, Thomson Reuters) at [HR11.10.01].

13      BNZ v Mulholland, above n 12, at 302.

the Court. Sim’s Court Practice does state that “a sealed judgment or order may be corrected where the mistake or error is an oversight by either party or by the Court”.14 The authority cited to support this is neither modern or from New Zealand – it is a judgment from Robert Goff LJ (as he then was) in Mutual Shipping Co v Bayshore Shipping Co:15

In none of the last five cases I have cited did the judgment or order as drawn fail to give effect to the intention of the Court at the time when it was drawn. In each case there was, however, an error in the judgment or order arising from an accidental slip or omission — by a party, or by his Counsel, or by his solicitor.

[12]              This case appears to be the strongest authority in support of the proposition that HCR 11.10 can be invoked in the present circumstances.

[13]              Having reviewed the memorandum of counsel, I am satisfied that although HCR 11.9 is not properly invoked, HCR 11.10 is available and is appropriately utilised.

[14]              Counsel for the applicants made an error in not appreciating that the 14-day period of grace provided by s 32 of the Receivership Act would have expired a few days before the date on which the Court considered the application under s 32(7).

[15]              This was a simple error by counsel. It falls within the type of error governed by HCR 11.10. Errors of this nature can be corrected by the Court under HCR 11.10. Although in Allan Scott Wines & Estates Holdings Ltd v Lloyd, the Court declined to apply HCR 11.10 finding that the error was one of mis-joinder rather than misnomer, arising from a solicitor’s error, there is no suggestion that HCR 11.10 was not available in the case of a solicitor’s error.16

14     Christopher Corry (ed) Sim’s Court Practice New Zealand (online ed, LexisNexis) at [HCR11.10.3].

15     Mutual Shipping Co v Bayshore Shipping Co [1985] 1 All ER 520 (CA) at 528.

16     Allan Scott Wines & Estates Holdings Ltd v Lloyd (2006) 18 PRNZ 199.

Outcome

[16]              The decision of 3 March 2020 in this matter is recalled and [21](d) of the decision is amended so that the last line reads: “… 15 working days from 27 February 2020; and”.

Churchman J

Solicitors:

Anthony Harper, Christchurch for Applicants