Haines v Bassett-Burr

[2023] NZCA 591

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA60/2023
 [2023] NZCA 591

BETWEEN	QUENTIN STOBART HAINES Applicant
AND	ROY WILLIAM BASSETT-BURR Respondent

Court:	Miller, Moore and Palmer JJ
Counsel:	J D Dallas for Applicant DGO Livingston for Respondent
Judgment: (On the papers)	23 November 2023 at 3.00 pm

JUDGMENT OF THE COURT
(Application for recall)

AThe application for recall is declined.

BMr Haines must pay costs for a standard application on a band A basis.  Costs should reflect the need for the respondents to file additional memoranda in response to the amended application.

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REASONS OF THE COURT

(Given by Miller J)

1. Mr Haines has moved for recall of the Court’s judgment of 21 August 2023.[1]  He seeks a full rehearing.  He has filed an amended application and two affidavits in support.  The application is opposed.

   [1]Bassett-Burr v Haines [2023] NZCA 380.

2. In accordance with normal practice, the recall application has been referred to the same panel for a decision on the papers.  There is no reason to depart from usual practice in that regard. 

3. The grounds advanced are that:

   3.1It was a matter of record that the statutory demands had been improperly issued.  That record was made in the High Court and subsequently confirmed in the Supreme Court.  Those decisions were not under appeal, the Court of Appeal had no jurisdiction to make a finding that the demands had been properly issued.

   3.2The Case on Appeal as filed was not prepared in consultation and did not comply with the Court of Appeal (Civil) Rules 2005.  The Case on Appeal was unable to be effectively used by Counsel or the Court during the hearing resulting in the Court being unable to be directed to the relevant evidence.  The Case on Appeal contained several significant departures from the bundle of evidence on record before His Honour Justice Churchman.

   3.3The Court did not consider the time frames for filing an application for setting aside a statutory demand 10 working days after service as contained in s 289 Companies Act 1993.  

   3.4The Court did not consider the judgment of His Honour Associate Judge Johnston (which is under appeal) confirming legal fees being owed to Mr Haines in the sum of $603,750 incl GST issued after the decision under appeal but prior to the hearing of this appeal.

   3.5Counsel for Mr Bassett-Burr did not disclose relevant documents (discharge of mortgage) which would have shown Grice J was wrong to enter summary judgment against Mr Haines.

4. The application is in substance an attempt to relitigate the merits of the Court’s judgment by reference to collateral matters which, with respect to Mr Dallas, manifestly have no or little bearing on the Court’s decision.  None of the grounds advanced affect the Court’s conclusions that the issue of the demands was not an abuse of process and Mr Bassett‑Burr did not act improperly. 

5. The Court does not accept that it overlooked relevant material, whether because of deficiencies in indexing of the casebook or otherwise.  The unsatisfactory character of the recall application is nicely illustrated by Mr Livingston’s point that Mr Dallas identifies not one document that could not be located at the time and might have affected the outcome.  Nor, for the reasons given in the judgment,[2] does the Court accept that Mr Haines needed to move as quickly as he did to set aside the demands.

   [2]At [34].

6. The only allegation which requires additional comment is the claim that two discharges of mortgage which were not before us in the previous hearing show that, contrary to the Court’s finding,[3] the Haines interests are not liable on the assigned debts.  If correct, which seems very unlikely for the reasons given by Mr Livingston, the point would not alter our conclusion that non‑party costs ought not to have been awarded.  We record, in fairness to Mr Livingston, that he says no discovery had been made, on either side, at the time of the summary judgment hearing;  that is to say, there was no breach of his duty as an officer of the Court.

   [3]At [41].

7. The application for recall is declined.  The only available remedy for Mr Haines, should he wish to challenge the judgment of 21 August, is an application for leave to appeal to the Supreme Court.

8. Mr Haines must pay costs on this application on a band A basis.  Costs should reflect the need for the respondents to file additional memoranda in response to the amended application.

Solicitors:
jd Dallas, Wellington for Applicant
Livingston & Livingston, Wellington for Respondent