Hy Tourism Limited v Three Dukes Home Limited
[2020] NZHC 2849
•30 October 2020
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CIV 2020-463-000042
[2020] NZHC 2849
BETWEEN HY TOURISM LIMITED
Plaintiff
AND
THREE DUKES HOME LIMITED
Defendant
Hearing: On the papers Counsel:
R M Dillon for the Plaintiff
K A Badcock for the Defendant
Judgment:
30 October 2020
JUDGMENT OF VAN BOHEMEN J
[Amendment of Sealed Order]
This judgment was delivered by me on 30 October 2020 at 3.00pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Queen City Law, Auckland Badcock Law, Rotorua
HY TOURISM LIMITED v THREE DUKES HOME LIMITED [2020] NZHC 2849 [30 October 2020]
Introduction
[1] The plaintiff, Hy Tourism Ltd, applies to have corrected an order sealed and issued by the Rotorua High Court Registry on 6 October 2020.
[2] Hy Tourism submits that the sealed order does not accurately the decisions in the judgment I gave on 13 August 20201 and a minute I made on 7 September 2020.2
[3] The defendant, Three Dukes Home Ltd, maintains that the sealed order should stand as correct.
Background
[4]In my judgment I stated:
[67] Hy Tourism has not satisfied me that it should be relieved of its obligation to pay the amount ordered by the adjudicator in her award dated 10 June 2020.
[68] I am not satisfied that the orders made by Moore J on 4 June 2020 to dismiss Hy Tourism’s application for a stay of execution of the adjudicator’s determination were wrong.
[69] I dismiss Hy Tourism’s application to vary the orders made by Moore J on 4 June 2020.
[70] However, to ensure that Hy Tourism will be repaid the amount ordered by the adjudicator if Hy Tourism succeeds in its substantive claim, I direct that Three Dukes provide to the Court and to the satisfaction of the Registrar:
(a)Evidence that Three Dukes has taken or arranged a security over an unencumbered property in favour of Hy Tourism for the amount of the adjudicator’s determination; and
(b)An undertaking by Three Dukes, and the owner of the property if different from Three Dukes, not to remove the security or dispose of the property until Hy Tourism’s substantive claim in this proceeding has been determined and given effect to.
1 Hy Tourism Ltd v Three Dukes Homes Ltd [2020] NZHC 2051. (This decision as reissued on 13 August 2020).
2 Hy Tourism Ltd v Three Dukes Homes Ltd HC Rotorua CIV-2020-463-42, 7 September 2020.
[5]In my minute:
(a)I confirmed the arrangement proposed by counsel for Three Dukes that Hy Tourism pay the amount ordered by the adjudicator, being the sum of $577,967.16, into the trust account of Hughes and Associates and to be held in accordance with the arrangement outlined at [4] of my minute; and
(b)I acknowledged receipt of counsels’ costs memoranda and stated that I would issue a judgment on costs if necessary. To assist counsel, I indicated that Three Dukes was entitled to recover its actual and reasonable costs incurred in securing payment of the amount in the payment claim submitted to Hy Tourism on 28 February 2020 and to which no payment schedule was provided.3 I directed that, if Mr Dillon wished to take issue with the amount claimed in Mr Badcock’s memorandum, he could file and serve memorandum by 22 September 2020, and Mr Badcock in reply by 25 September 2020.4
[6]No memoranda were filed.
The sealed order
[7] At the request of Mr Badcock, counsel for Three Dukes, the Registrar of the High Court issued a sealed order dated 6 October 2020 as follows:
… this Court orders:
1. Judgment be entered for the defendant against the plaintiff in the sum of
$577,967.16 dated 13 August 2020 ...; and,
2. Costs against the plaintiff in the sum of $19,650.00 (excluding GST) inclusive of disbursements dated 7 September 2020 …
3 At [14], in accordance with ss 22(3) of the Construction Contracts Act 2002 and the Court of Appeal’s decision in Watts & Hughes Construction Ltd v Complete Siteworks Company Ltd [2014] NZCA 564.
4 At [15].
Reactions to sealed order
[8] By email dated 7 October 2020, Mr Badcock forwarded a copy of the sealed order to Mr Dillon, counsel for Hy Tourism. It appears this was the first time that Mr Dillon became aware of Three Dukes’ application for the sealed order.
[9] By email to Mr Badcock dated 8 October 2020, Mr Dillon objected that the sealed order had been irregularly obtained and sought confirmation of its recall.
[10] By memorandum dated 8 October 2020, Mr Badcock informed the Court of Mr Dillon’s objection which, he said, was incorrect and unfounded. Mr Badcock requested that the Court direct that the sealed order remain in force without amendment.
[11] By memorandum dated 9 October 2020, Mr Dillon sought the correction of the order on the grounds it does not express what was decided and intended in my judgment and my minute. Mr Dillon provided a draft amended order for sealing which he said more properly reflect the orders in my decisions.
[12]Mr Badcock has not filed a reply to Mr Dillon’s memorandum.
Discussion
[13] Mr Dillon is correct that the sealed order does not reflect key orders in my judgment and does not take into relevant orders in my minute.
[14] The principal order in my judgment, at [69], was to dismiss Hy Tourism’s application to vary orders made by Moore J on 4 June 2020 to stay enforcement of the determination of an adjudication of a dispute between Hy Tourism and Three Dukes. As recorded in my minute, the effect of my order was that Hy Tourism must pay Three Dukes the amount ordered by the adjudicator, plus Three Dukes’ costs, the costs of the adjudication, and security for costs paid by Three Dukes. I did not, however, give judgment for that amount in my decision.
[15] In addition, the sealed order does not reflect the order in my judgment, at [70], that Three Dukes provide evidence of its ability to repay the amount ordered by the adjudicator if Hy Tourism should succeed in its substantive claim against Three Dukes. Nor does it reflect the order in my minute recording the terms of the security proposed by Three Dukes.
[16] There is also an error in the cost’s calculation in the sealed order. The correct amount is $19,665.00 plus disbursements of $925.00.
Legal principles
[17]Rule 11.10 of the High Court Rules provides:
11.10 Correction of accidental slip or omission
(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 —
(a) on its or his or her own initiative; or
(b) on an interlocutory application.
[18] The slip rule cannot be used to enable a court to have second or additional thoughts.5 However, it can be invoked where an order needs to be amended to give effect to the intention of the Court.6
[19] In the recent decision Creative Development Solutions v Chorus New Zealand Ltd, Associate Judge Johnston summarised the principles from cases dealing with amendments of the sealing of judgments as follows:7
[25] It appears to me that the principles at play are these:
5 Bristol-Myers Squibb Co v Baker Norton Pharmaceutical Inc [2001] EWCA Civ 414 (CA) at [25].
6 At [25].
7 Creative Development Solutions v Chorus New Zealand Limited [2020] NZHC 2180, citing Bank of Nakhodka v The Fishing Vessel “Abruka” (1997) 10 PRNZ 659 (HC); Gairloch Holdings Ltd v Tullamore Investments Ltd Wellington CIV-2010-485-295, 16 September 2010; Cameron v Coleman HC Wellington CIV-2010-485-2151, 5 October 2011; Steel v Bruce County Council HC Dunedin M237/83, 26 February 1986; Crew v Crew [1921] NZLR 769 (SC).
(a)Once a judgment is perfected by sealing, in the interests of finality, it is not generally open to a party to challenge it except by way of the exercise of an available right of appeal. This is what is referred to in the cases as the principle of finality. It is grounded on public policy favouring finality and certainty of outcome in litigation;
(b)However, that starting point must yield to principles of natural justice or fairness in the conduct of litigation. So, materially for present purposes, if the Court makes an order granting costs and disbursements to one party without determining definitively the quantum of any aspect of the same, leaving that for determination by the Registrar, then, as a matter of natural justice, the Registrar is bound to ensure that the parties have a fair opportunity to have their say before determining whatever he or she must determine;
(c)If the Registrar does not do that, then a party adversely affected is entitled to have the situation remedied, which may be done by review or under the slip rule depending on the circumstances of the case;
(d)In seeking such a remedy, the applicant will have to establish:
(i)First, that the Registrar failed to ensure that it had a fair opportunity to have its say in relation to the issue determined; and
(ii)Second, that the judgment as sealed contains a non-trivial error requiring correction.
Decision
[20] Having regard to the above principles, I consider the present circumstance is one contemplated by the slip rule.8 The sealed order does not accurately record the orders in my judgment. Nor does it record the order in my minute recording how the parties were to give effect to my judgment.
[21] In addition, Hy Tourism should have been given the opportunity to review the draft orders before they were sealed.
[22] The discrepancy between those orders in my judgment and my minute and the sealed order is not trivial. However, amending the sealed order will not change the
8 While the above principles are drawn largely from authorities concerning errors solely in respect of the sealing of costs orders, the present circumstance is analogous: it is borne of the same error in kind and effect. I note the slip rule was invoked to amend the calculation of an award of damages in the Court’s substantive, sealed judgment in Dodds v Southern Response Earthquake Services Ltd [2019] NZHC 2741.
outcome of my substantive orders. In the case of the costs calculation, the difference is not significant and probably results from clerical error.
[23] For these reasons, I am satisfied the sealed order should be amended in accordance with r 11.10.
[24] Accordingly, I quash the sealed order made on 6 October 2020 and direct that the amended order annexed to this judgment be sealed and issued in its place.
G J van Bohemen J
Annex
Order of the Court
Before the Honourable Justice van Bohemen on 13 August 2020, 7 September 2020
and 30 October 2020. This Court directs that:
[1] The application of the Plaintiff to vary a decision to dismiss an application an adjudication is dismissed.
[2]The Court directs that:
(a)Hy Tourism will pay the amount ordered by the adjudicator, being the sum of $577,967.16, into the trust account of Hughes & Associates, who will hold those funds until Hy Tourism’s substantive claim has been resolved.
(b)It is recorded that Three Dukes has irrevocably instructed Hughes & Associates to receive and hold the sum of $577,967.16 undisbursed in its trust account until it receives either joint instructions from Three Dukes and Hy Tourism or directions from the Court in this proceeding as to how those funds are to be disbursed.
(c)It is further recorded that Hughes & Associates has provided a written undertaking that if it receives the sum of $577,967.16 from Hy Tourism, it will hold those funds undisbursed in its trust account until it receives either joint instructions from Three Dukes and Hy Tourism or directions from the Court in this proceeding as to how those funds are to be disbursed.
(d)The undertaking provided by Hughes & Associates records that any interest accrued on the account it receives from Hy Tourism is to be paid to Three Dukes.
[3]Costs to the defendant on the sum of $19,665.00 plus disbursements of
$2,925.00
Dated this 30th day of October 2020
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