Hawkins v Gannon

[2022] NZHC 1291

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKAORIORI ROHE

CIV-2021-435-19

[2022] NZHC 1291

BETWEEN

KATHRYN ANNE HAWKINS,

TERENCE SPENCER JOHN HAWKINS, RUSSELL SPENCER HAWKINS and
BEVERLEY KAY HAWKINS
Plaintiffs

AND

PATRICK GANNON and

CAROLINE DENISE GANNON

Defendants

Hearing:	On the papers
Appearances:	M J Wenley for Plaintiffs Defendants in person
Judgment:	2 June 2022

JUDGMENT OF ASSOCIATE JUDGE JOHNSTON

[Costs]

[1]    On 5 May 2022, I delivered a reserved judgment in this matter dealing with the plaintiffs’ application for summary judgment. I awarded summary judgment to the plaintiffs in relation to three components of their claim. However, I declined summary judgment in relation to two other components. These components were claims in relation to alleged unpaid contributions to a maintenance reserve fund provided for in the lease between the parties, and the cost of certain pavement resurfacing work carried out by the plaintiffs for which the defendants were responsible.

[2]    The essential basis upon which I concluded that the plaintiffs had failed to establish that the defendants had no arguable defence to those two claims was evidence

HAWKINS v GANNON and [2022] NZHC 1291 [2 June 2022]

indicating that the plaintiffs had refused to allow the defendants access to the maintenance reserve fund to pay for maintenance work for which the defendants were responsible, which was the very purpose of the fund. I concluded that it was at least arguable that an identifiable and measurable claim may have been available to the defendants and therefore that to award summary judgment would be inappropriate.

[3]    The plaintiffs have now asked — informally by memorandum — that I recall my judgment. They say that I ignored aspects of the evidence and decided the point referred to above against them on a basis that was not put forward by the defendants and therefore that they did not have an opportunity to contest.

[4]The rule relating to the recall of judgments is r 11.9:

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.

[5]    All of the authorities emphasise that the recall of a judgment is a serious step and not one that the Court undertakes lightly. The leading case is Horowhenua County v Nash (No. 2) where Wild CJ said: 1

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 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 reasons justice requires that the judgment be recalled.

[6]In my assessment, this case falls well outside any of those three categories.

[7]    It is contended I overlooked evidence to the quantum of the maintenance reserve fund as at the date of liquidation. Mr Wenley has referred me to aspects of the evidence that I did not refer in my judgment and I accept that there was evidence as to the balance of the fund as at the date of liquidation. However, it does not seem to me that that undermines my determination in relation to these issues.

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

[8]    Even if there were more in the point than I am allowing, in the end, the categories of cases identified in Horowhenua County v Nash do not include an error as to the evidence.

[9]    Nor do I accept I determined this issue on the basis of an argument that was not live at the hearing. The defendants, Mr and Mrs Gannon, were acting for themselves. Their contribution to the hearing was anything but focused on the core issues. Nevertheless, their affidavit evidence and submissions contained a considerable amount of material pointing to an argument that they should not be liable for any outstanding contributions to the maintenance fund, or the cost of repairs to paving, in the absence of a careful analysis of what maintenance work they carried out and in respect of which they were denied reimbursement for from the maintenance fund.

[10]   It also needs to be borne in mind, that, this being a summary judgment application, it was the plaintiffs who had the burden of establishing to the Court’s satisfaction that there was no arguable defence to the claim. My conclusion was of course not that the defendants had a defence, but rather that the plaintiffs had failed to establish that there was no arguable defence.

[11]   Finally, the consequence of my determination was not that the plaintiffs do not have an opportunity to pursue these aspects of their claim. They are of course perfectly entitled to do so at trial.

[12]   For those reasons, I decline to recall my judgment,  which  must,  to  use Wild CJ’s terminology, stand for better or worse.

[13]   On behalf of the plaintiffs Mr Wenley seeks costs. Under the terms of the lease, the plaintiffs are entitled to their actual and reasonable costs, which have been put in evidence. No argument is advanced by the defendants as to their reasonableness.

[14]The plaintiffs are entitled to judgment for:

(a)a sum of $202,936.87, being made up of

(i)unpaid rental of $135,125.33; and

(ii)unpaid insurance premiums of $67,811.54;

(b)interest thereon at the contractual rate to 31 August 2021, being

$71,754.44;

(c)interest thereon from 1 September 2021 at the rate of 17.39 per cent; and

(d)      costs of $34,827.57.

[15]   This proceeding is to be scheduled for a case management conference as soon as conveniently possible so that the aspects not resolved can be scheduled for trial. Counsel and the defendants are to consider whether the best course would be to transfer the matter to the District Court for trial.

Associate Judge Johnston

Solicitors:
Willis Legal, Napier for Plaintiffs