Harborow v Deliu

[2024] NZCA 204

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA422/2022
 [2024] NZCA 204

BETWEEN	MARK HARBOROW AND NICK FLANAGAN Appellants
AND	FRANCISC CATALIN DELIU Respondent

Court:	Courtney, Venning and Dunningham JJ
Counsel:	N F Flanagan for Appellants Respondent in person
Judgment: (On the papers)	4 June 2024 at 11.30 am

JUDGMENT OF THE COURT

A        The application for recall is declined.

B        The application for disqualification is declined.

CMr Deliu must pay the appellants costs for two standard applications on a band A basis and usual disbursements.

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

1. Mr Harborow and Mr Flanagan applied to the High Court under r 7.48 of the High Court Rules 2016 for an order that funds held by the High Court for Mr Deliu’s benefit be paid to them in partial satisfaction of costs awards previously made in their favour against Mr Deliu.  The High Court declined the application.[1]  Mr Harborow and Mr Flanagan successfully appealed that decision in this Court.[2]

   [1]Deliu v Johnstone [2022] NZHC 467.

   [2]Harborow v Deliu [2024] NZCA 138.

2. Now, Mr Deliu has applied for orders that (1) the decision of this Court be recalled and (2) Venning J, who sat on the panel to hear the appeal, be disqualified from further involvement in the case.[3]

Application for recall

[3]In addition, Mr Harborow and Mr Flanagan sought to have security for costs fixed in respect of Mr Deliu’s applications but have since advised that they are not pursuing that application.

1. At the conclusion of the decision allowing the appeal, the Court made an order for costs against Mr Deliu.[4]  The basis for Mr Deliu’s recall application is that he was not heard on costs.

   [4]Harborow v Deliu, above n 2, at [36].

2. The question of costs was not canvassed during oral argument.  However (and as required by [5] of this Court’s Civil Appeals Practice Note 2022), Mr Harborow and Mr Flanagan advised in their written submissions filed in advance of the appeal hearing that they were seeking costs on the appeal.

3. Although Mr Deliu was on notice that costs would be sought against him, he did not address the issue in his written submissions.  Nor did he seek to be heard on the issue in oral argument.  The principles governing the setting of costs are set out in pt 4A of the Court of Appeal (Civil) Rules 2005.

4. Mr Deliu’s complaint falls well short of the recognised criteria for the recall of a judgment.[5]  The application for recall is declined.

Application for disqualification

[5]See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, affirmed in: Craig v Williams [2019] NZSC 60 at [10]; and Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

1. The panel originally constituted for this hearing included Moore J, who recused himself and was replaced on the panel with Venning J.  Mr Deliu complains about the circumstances in which Moore J recused himself and asserts that Venning J was not lawfully appointed.

2. There is no merit in this application.  Venning J was appointed under s 48(2) of the Senior Courts Act 2016 and assigned to sit on the panel to hear this appeal.  The panel was correctly constituted.  The application is declined.

Costs

1. Mr Harborow and Mr Flanagan seek costs on the applications.  It is proper that costs be granted for each application on the basis of a standard application.

Result

1. The application for recall is declined.

2. The application for disqualification is declined.

3. Mr Deliu must pay the appellants costs for two standard applications on a band A basis and usual disbursements.

Solicitors:
Meredith Connell, Auckland for Respondents