ICL Construction (2016) Limited v Ian Roebuck Crane Hire Limited

[2022] NZHC 3492

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-043-017

[2022] NZHC 3492

BETWEEN

ICL CONSTRUCTION (2016) LIMITED

Appellant

AND

IAN ROEBUCK CRANE HIRE LIMITED

Respondent

On the papers:

Counsel:

T J Rainey for Appellant

I D Matheson for Respondent

Judgment:

16 December 2022

JUDGMENT OF CHURCHMAN J

[Recall application]

Background

[1]    The appellant has applied to recall my judgment of 15 December 2022 in relation to its application for leave to appeal my decision of 4 November 2022.

[2]    The reason for the application is that the decision was issued before the submissions in reply from the appellant were received. That came about because, at the time of issuing the decision, I was unaware that counsel for the appellant had advised the Registrar that he wished to file submissions in reply to those of counsel for the respondent and intended to do so on 16 December.

[3]    Mr Rainey had notified the Registrar of that intention on 13 December 2022 but, as a result of a communication breakdown that information had not reached me. I therefore issued the decision in ignorance of the fact that Mr Rainey had notified an intention to file reply submissions.

ICL CONSTRUCTION (2016) LIMITED v IAN ROEBUCK CRANE HIRE LIMITED [RECALL APPLICATION] [2022] NZHC 3492 [16 December 2022]

The law

[4]    Rule 11.9 of the High Court Rules 2016 provides 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. The Court’s discretion to recall is not exercised lightly, and is not to be seen as a substitute for an appeal.1 It is not to extend to substantive challenges to findings of fact and law, or for the raising of further arguments that could have been raised but were not.2 The principle of finality in litigation is important, and underlies the need for the discretion to be exercised only sparingly.3 As stated by Wild CJ: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.

[5]    The present case falls into the third category espoused by Wild CJ. Recall in such circumstances is intended for material defects that speak for themselves.5 This includes where there is a material factor that has been overlooked.6 For example, recall was granted in Green v Gillette, where the Court was unaware of a communication between the Registrar and the appellant, which might have given the appellant the impression he need not take a particular step in the appeal.7 The appellant in that case was a self-represented lay-person.

Analysis

[6]    I accept Mr Rainey’s submission that, in the circumstances where I had issued the decision without the opportunity of considering his submissions in reply, that a

1      Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [5]

2      Nottingham v Real Estate Agents Authority [2017] NZCA 145.

3      Gibson v Official Assignee [2019] NZHC 532, (2019) 29 NZTC 24-005 at [21].

4      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; affirmed in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76.

5      Cummins v Body Corporate 172108 [2022] NZCA 153 at [13].

6      Munro v Gladvale Farms Ltd (No 3) [2017] NZHC 2692 at [14]; and Patel v Dunbar [2021] NZHC 2634 at [11].

7      Green v Gillette [2021] NZCA 323.

situation of unfairness arises and that the facts are similar to those in Green v Gillette

where recall was held to be justified.

[7]    Accordingly, the judgment is recalled under r 11.9 of the high Court Rules 2016.

Churchman J

Solicitors:

C&M Legal, New Plymouth for Appellant

Connect Legal Taranaki, New Plymouth for Respondent