Kaye v Norris Ward McKinnon
[2024] NZSC 39
•23 April 2024
| IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI |
| SC 125/2021 [2024] NZSC 39 |
| BETWEEN | ANTHONY PRATT KAYE AND MORVA KAYE |
| AND | NORRIS WARD MCKINNON |
| Court: | Glazebrook, Ellen France and Kós JJ |
Counsel: | Applicants in person |
Judgment: | 23 April 2024 |
JUDGMENT OF THE COURT
AThe application for recall of this Court’s judgment of 3 December 2021 (Kaye v Norris Ward McKinnon [2021] NZSC 168) is dismissed.
BThere is no order as to costs.
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REASONS
Introduction
The applicants, Anthony Pratt Kaye and Morva Kaye, seek leave to recall our judgment of 3 December 2021 declining to grant an extension of time to apply for leave to appeal (the 2021 judgment).[1] The application is made on the basis that “for some other very special reason justice requires that the judgment be recalled”.[2]
Background
[1]Kaye v Norris Ward McKinnon [2021] NZSC 168 (O’Regan, Ellen France and Williams JJ) [SC 2021 judgment].
[2]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 as cited in Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].
The application for recall has its genesis in proceedings filed in the High Court.[3] In those proceedings, the applicants alleged negligence on the part of the respondent both in respect of the finalisation of a purchase of a garden centre business and associated land, and in implementing instructions to sue their former solicitors.
[3]Norris Ward McKinnon v Kaye [2015] NZHC 1025 (Peters J) [HC judgment].
The High Court rejected the claims.[4] That judgment was upheld by the Court of Appeal.[5] In 2016 this Court declined leave to appeal noting, amongst other matters, the proposed appeal was “extremely factual” and did not raise any question of general or public importance.[6] Nor was the miscarriage of justice ground engaged.[7] This Court later dismissed an application for recall of the decision to decline leave to appeal.[8]
[4]At [65].
[5]Kaye v Norris Ward McKinnon [2016] NZCA 32 (Harrison, Fogarty and Toogood JJ).
[6]Kaye v Norris Ward McKinnon [2016] NZSC 66 (William Young, Glazebrook and O’Regan JJ) at [6]. See also Senior Courts Act 2016, s 74(2)(a).
[7]At [8] citing Junior Farms Ltd v Hampton Securities Ltd (in liq) [2006] NZSC 60, (2006) 18 PRNZ 369. See also Senior Courts Act, s 74(2)(b).
[8]Kaye v Norris Ward McKinnon [2016] NZSC 104 (William Young, Glazebrook and O’Regan JJ).
The 2021 judgment concerned two judgments of the Court of Appeal. Both of those judgments involved unsuccessful applications to recall the Court of Appeal’s judgment dismissing the appeal against the High Court judgment.[9] In the 2021 judgment, this Court described the decision declining leave in 2016 as “the end of the road” for the claim against the respondent.[10] The Court went on to note the interests of justice did not warrant a grant of leave.[11]
The proposed appeal
[9]Kaye v Norris Ward McKinnon [2020] NZCA 333 (Miller and Collins JJ); and Kaye v Norris Ward McKinnon [2021] NZCA 247 (Miller and Collins JJ).
[10]SC 2021 judgment, above n 1, at [7].
[11]Senior Courts Act, s 74(1).
In support of their submission that the test for recall is met, the applicants say there are three questions for which justice requires an answer:[12]
(a)Was “proper advice” given in relation to the situation presented?
(b)Did the respondent consider the potential consequences of the path advised?
(c)Was a prompt and efficacious settlement achievable?
[12]The applicants develop their submissions by reference to Ellis v R (Continuance) [2022] NZSC 114, [2022] 1 NZLR 239.
As is apparent from these submissions, the applicants essentially want to reargue their claim with a view to achieving a different outcome. That is not a basis for recall but rather, in substance, an attempt to relitigate this Court’s earlier decision to decline leave to appeal. Nothing has been advanced which meets the test for a recall of either that decision or the 2021 judgment.
Result
The application for recall is accordingly dismissed.
As the respondent was not asked to make any submissions, we make no order as to costs.
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