Johns v Hamilton City Council

[2022] NZHC 1378

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2019-419-222

[2022] NZHC 1378

BETWEEN

BRYCE JASON JOHNS

Plaintiff

AND

HAMILTON CITY COUNCIL

First Defendant

(continue over page)

On the papers

Counsel:

B M Easton for Bryce Johns

P A Robertson for Hamilton City Council J J S Shaw for Garth Davey

A B Foster for Elite Coastal Developments Limited, Daniel Gujer and Hamish Stewart
D P Shore and A S-H Hong for Next Level Roofing Limited and Ross Cameron

Judgment:

13 June 2022

JUDGMENT OF HARLAND J

[Recall of judgment]

This judgment was delivered by me on 13 June 2022, at 2:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar  Date……………………………..

Counsel/Solicitors:

Grimshaw & co, Auckland Heaney & Partners, Auckland Foster & Milroy, Hamilton McCaw Lewis, Hamilton

Norris Ward McKinnon, Hamilton Copy to: S Bell

JOHNS v HAMILTON CITY COUNCIL (recall of judgment) [2022] NZHC 1378 [13 June 2022]

GARTH WARWICK DAVEY

Second Defendant

EVOLVE ARCHITECTURE LIMITED
First Third Party

JAMES PARROTT

Second Third Party (Discontinued)

MARK and SUSAN BOOTH

Third Third Party (Discontinued)

ELITE COASTAL DEVELOPMENTS LIMITED

Fourth Third Party

DANIEL GUJER
Fifth Third Party

HAMISH JOHN STEWART
Sixth Third Party

WESTGATE FOR ROOFING LIMITED
Seventh Third Party

CONCEPT PLASTERING LIMITED
Eighth Third Party

SIMON BELL
Ninth Third Party

CIV-2020-419-153

BETWEEN  HAMILTON CITY COUNCIL

Plaintiff

AND  JAMES PARROT

First Defendant (Discontinued)

ELITE COASTAL DEVELOPMENTS LIMITED
Second Defendant

DANIEL GUJER

Third Defendant

HAMISH JOHN STEWART
Fourth Defendant

WESTGATE FOR ROOFIING LIMITED

Fifth Defendant (Discontinued)

CONCEPT PLASTERING LIMITED
Sixth Defendant

SIMON BELL

Seventh Defendant (Discontinued)

NEXT LEVEL ROOFING LIMITED
Eighth Defendant

ROSS CAMERON
Ninth Defendant

GARRY ROSS RICHARDSON
Tenth Defendant

BELL BUILDERS LIMITED
Eleventh Defendant

Introduction

[1]    On 7 March 2022, I issued my judgment in respect of this proceeding. An application to recall the judgment has now been made by the first defendant. It is not opposed by any party.

Background

[2]    In my judgment of 7 March 2022, I granted leave to the parties to file memoranda regarding costs or in relation to the matters referred to at [360], [388] and

[391] of the judgment.

[3]    Various memoranda were filed.1 It was apparent from these memoranda that several issues had arisen in relation to the judgment including that aspects of it are now subject to an appeal by the Council.

[4]Counsel for the Council’s memorandum of 26 April 2022 stated the following:

(a)On 23 November 2020, the Court made an order pursuant to r 10.12 of the High Court Rules, consolidating the proceedings CIV-2019-419- 222 and CIV-2020-419-153.

(b)The Council was found liable to Mr Johns at paragraph [340(a)] of the judgment while Mr Davey was found liable to Mr Johns at [340(b)] of the judgment.

(c)The Council in the original proceeding (CIV-2019-419-222) lodged a cross-claim against Mr Davey (pursuant to the Law Reform Act 1936) on the basis that, if the Council was found liable to Mr Johns, it would be entitled to judgment against Mr Davey towards the Council’s liability to Mr Johns because he is a concurrent tortfeasor alongside the Council.

1      Memorandum dated 1 April 2022 by counsel for Mr Johns, memoranda dated 12 and 26 April 2022 by counsel for the Council, and memorandum dated 26 April 2022 by counsel for Mr Davey.

(d)The Court found that the Council’s cross-claim against Mr Davey had been superseded by the Council’s separate proceedings under the Law Reform Act in CIV-2020-419-153 at [12] of the judgment. The Court did not expressly deal with the Council’s cross-claim.

(e)The Council’s separate proceedings under the Law Reform Act (CIV- 2020-419-153) did not name Mr Davey as a defendant, instead it relied on the cross-claim against Mr Davey in the original proceedings (CIV- 2019-419-222) that had been consolidated.

(f)In addition, Mr Davey and the Council made claims (Mr Davey in CIV- 2020-419-153 and the Council in CIV-2019-419-222) against the builders, that is Hamish John Stewart and Daniel Gujer. Those parties were found liable for defects, and I apportioned liability to them of 10% at para [388(d)] of the judgment, but when summarising the effect of the judgment at para [340] there was no reference to their liability.

[5]    A judicial telephone conference was convened before me on 4 May 2022 to discuss the remaining issues and how they could be resolved.

[6]    The issues discussed at the judicial telephone conference included matters raised by counsel in relation to the judgment on liability and whether costs, disbursements and interest in relation to Mr Johns’ claim and the Council’s claim could be finalised.

[7]In relation to the liability issue, I outlined the following:

[5]        Although counsel for Mr Johns sought clarification that in his proceeding the Council and Mr Davey are jointly liable for all of Mr Johns’ losses (that is, the total judgment sum), such clarification is no longer required because the Council accepts that as between Mr Davey and the Council they are both concurrent tortfeasors and the Council is liable to Mr Johns for the full amount of the judgment. Mr Robertson advised that the Council has agreed to meet the full amount of Mr Johns’ judgment and costs (the latter of which have also been agreed), but wishes to recover from Mr Davey in accordance with its cross-claim.

[6]        Unfortunately, prior to the judgment being issued, the fact that an order for consolidation of the proceedings had been made was not apparent to

me from the Court file. It appears that on 23 November 2020 the Court made an order consolidating the proceedings, however this did not result in a formal order being sealed; rather, the order was incorporated in a minute. Although the Council’s separate proceedings under the Law Reform Act 1936 (CIV- 2020-419-153) did not name Mr Davey as a defendant, it relies on the cross- claim against Mr Davey in Mr Johns’ proceedings (CIV-2019-419-222). Because of this, in his memorandum of 26 April 2022, Mr Robertson invited the Court to enter judgment on the Council’s cross-claim against Mr Davey in CIV-20219-419-222.

[7]        Given that the Council has filed an appeal seeking, among other things, judgment against Mr Davey based on the Council’s cross-appeal, I was concerned to establish whether I could deal with this issue. Given my indication that the fact of consolidation had not been obvious from the Court file, and neither had it been drawn to my attention, following discussion Mr Robertson requested time to think about the options and to file a further memorandum addressing them within seven days.

[8]        In relation to costs, disbursements and interest, my Minute recorded that no party had formally commented on or responded to the calculations provided by counsel for the Council in his memorandum of 26 April 2022, however, Mr Shaw, who at that point had only recently been instructed to act for Mr Davey, requested the ability to address any outstanding issues in a memorandum filed within seven days.

[9]I also outlined in my Minute the following:

[9]The Council also seeks judgment:

(a)on its cross-claim against Mr Davey, the second defendant in CIV-2019-419-222;

(b)on the successful claims made against other defendants in CIV-2020-419-153;

(c)for its costs (scale, experts and disbursements) against the other defendants; and

(d)for any interest on the Council’s payment of the judgment sum in excess of the Council’s apportioned 25 per cent and any interest on the Council’s costs, expert fees and disbursements from the date of those costs being fixed in accordance with the Interest on Money Claims Act 2016.

…

[12]Counsel involved in this issue are encouraged to liaise. Leave is reserved to Mr Shaw, acting for Mr Davey, and Mr Shore, acting for Next Level Roofing, to file a joint memorandum, or separate memoranda, within seven days addressing the Council’s proposed judgment sum if they dispute any aspect of it.

[13]It would be helpful for draft orders to be provided to the Court with the directed memoranda.

[10]      Counsel for the Council subsequently filed a memorandum dated 13 May 2022 seeking a recall of my judgment and attaching a draft judgment to be sealed. This was followed by memoranda by counsel for Next Level Roofing and Mr Cameron dated 16 and 23 May 2022, and a memorandum by counsel for Mr Davey dated 20 May 2022.

Application for recall

[11]The application for recall is made on the following grounds:

(a)The decision that the Council’s cross-claim against Mr Davey has been superseded by the Council’s separate proceedings under the Law Reform Act in CIV-2020-419-1531 was made under the mistaken belief that the proceedings had not been consolidated. This is a minor mistake, not a substantive issue that needs to be relitigated;

(b)The Court found Mr Davey and the Council liable for most of the same defects, so this issue has already been resolved by the Court;

(c)The Court found Hamish John Stewart and Daniel Gujer liable when assessing their liability for defects, but this is not recorded when summarising the liability of the parties.

(d)It is in the interests of justice that the judgment be recalled; it would not be just to put the parties to the expense of appealing issues that have already been resolved by the Court;

(e)None of the parties are prejudiced. It is relevant that the Council has paid Mr Johns the full judgment sum (which has been confirmed to have been received by Mr Johns).

Legal principles

[12]      Rule 11.9 of the High Court Rules 2016 (HCR) 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.

[13]      The principles that apply were set out in Horowhenua County v Nash (No 2), as follows:2

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.

[14]      This case engages the third category outlined in Horowhenua County v Nash (No 2). The Court of Appeal in Unison Networks Ltd v Commerce Commission observed that this category is intended to be “narrow” and cases relying on it are “likely to be rare”.3 The commentary to r 11.9 in McGechan on Procedure sets out examples of cases where a judgment has been recalled under this category. I agree with counsel for the Council that the following situations referred to are analogous to this case:

(a)The Court failed to determine an issue that was properly put to it; 4

(b)Where a Judge acknowledges that he or she overlooked a material factor in reaching a decision, recall avoids the risk that an appeal might be allowed and remitted to the trial Judge for consideration, at unnecessary further cost to the parties;5 and

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

3      Unison Networks Ltd v Commerce Commission [2007] NZCA 49.

4      Brake v Boote (1991) 4 PRNZ 86 (HC).

5      Munro v Gladvale Farms Ltd (No 3) [2017] NZHC 2692 at [14].

(c)The Judge overlooked a matter, for example, that a party had applied to amend the orders it sought.6

Discussion

[15]      No party opposes the application and what is sought does not extend to a challenge of any substantive findings of fact and law in the judgment.7 The proposed amendments in the main relate to clarifying the findings already made earlier in the judgment and seek to include them in the summary conclusions in relation to liability. These amendments are arguably not necessary or could be dealt with under the slip rule, but given the more fundamental issue to do with the consolidation of the proceedings, it is appropriate that they be dealt with in this judgment at the same time.

[16]      I am satisfied that the grounds have been made out to support the application for recall and that it is appropriate for the application to be granted as sought. Counsel helpfully proposed the following amendments:

[340(c)] Mr Davey’s third party claim succeeds against ECDL, Westgate, Concept Plastering, Hamish John Stewart, Daniel Gujer and Mr Bell, to the extent outlined in this judgment.

[340(d)] The Council’s claim succeeds against ECDL, Westgate, Concept Plastering, Hamish John Stewart, Daniel Gujer, Mr Bell and NRL to the extent outlined in this judgment.

[391A] On 23 November 2020, the Court made an order pursuant to HCR 10.12, consolidating the proceedings CIV-2019-419-222 and CIV-2020-419-

153. The Council and Mr Davey in CIV-2020-419-153 were the only defendants to the proceeding brought by Mr Johns and they both sought contribution from each other pursuant to section 17 of the Law Reform Act 1936. I have already found both parties liable to Mr Johns for their negligence. In relation to their respective claims for contribution I find that both the Council and Mr Davey succeed in their claims for contribution as against the other.

[391B] If the Council and Mr Davey were the only parties found liable for the defects, I would only need to apportion their liability. However, I also need to take account of the claims for contribution made by the Council and Mr Johns against other parties in the two proceedings.

[391C] I refer to my findings as to the apportioned liability of the Council, Mr Davey, ECDL, Westgate, Concept Plastering, Hamish John Stewart, Daniel Gujer and Mr Bell set out in [388] –[390].

6      Matua Finance Ltd v Bank of New Zealand HC Auckland CP490/94, 4 August 1995.

7      Zhang v Yu [2020] NZCA 592 at [9].

[391D] Pursuant to section 17 of the Law Reform Act 1936 and / or in equity, to the extent that any of Mr Davey, the Council, ECDL, Concept Plastering, Hamish John Stewart, or Daniel Gujer pay Mr Johns more than their apportioned liability, then that party is entitled to recover the balance from any other of these parties and I enter judgment accordingly.

[17]I am satisfied that the proposed amendments outlined above should be made.

Result

[18]      The application for recall is granted by inserting the paragraphs numbered [340(c)], [340(d)] and [391A]–[391D] as outlined in para [16] above.

Harland J