King v Jacks

[2022] NZHC 1659

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2021-419-292

[2022] NZHC 1659

BETWEEN

FRASER ALEXANDER KING

Plaintiff

AND

TESSA ALEXANDRA JACKS

Defendant

SCOTT ANTHONY MCKENNA

Interested Party

Hearing:

On the papers

Counsel:

Plaintiff in Person

G M Sandelin for Defendant

Judgment:

13 July 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 13 July 2022 at 4.30 pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

KING v JACKS [2022] NZHC 1659 [13 July 2022]

[1]    Mr King seeks recall of my judgment deciding costs should lie where they fall on his interlocutory application for the interim appointment of Perpetual Guardian as an independent trustee of a family trust in substitution of three existing trustees that included Mr King and his estranged wife, Ms Jacks.1 The application for recall is primarily based on a development since the issue of my judgment of 4 May 2022. Ms Jacks has now advised she consents to Perpetual Guardian being appointed as trustee on a permanent basis.

[2]    The issue of permanent appointment was raised by Mr King at the hearing of the interlocutory application to which the costs judgment relates. It was referred to in my judgment on the interlocutory application in the following way:2

[4]   A further source of disagreement was Mr King’s proposal that, with   the making of interlocutory orders to remove the current trustees and appoint Perpetual Guardian as an interim trustee, the substantive proceedings could be dealt with in their entirety and an order made appointing Perpetual Guardian as the independent trustee on a permanent basis. I acknowledge the apparent logic of such a course in light of Ms Jacks acceptance of the impasse between the existing trustees and the need to appoint an independent trustee to attend to the sale of the Property and administration  of  the proceeds.  However, Ms Jacks was not willing to consent to that course. In the absence of her being prepared to dispose of the substantive proceeding on such a basis, it is not open to the Court to dispose of the main proceedings on those terms. At counsel’s request, however, I have recorded Mr King’s wish to resolve the matter on that basis.

[3]    Because Ms Jacks has now consented to the permanent appointment of Perpetual Guardian, Mr King maintains my costs decision relating to the interlocutory application for an interim appointment can be recalled and viewed afresh. Ms Jacks opposes the application for recall and submits the potential resolution of the substantive claim has no relevance to the determination of costs on the interlocutory application. It is said the substantive claim could not be resolved until the terms of Perpetual Guardian’s appointment were determined.

[4]    Mr King’s application for recall is made in reliance on the third of the well- known principles set out in Horowhenua County v Nash (No 2):3 “[a judgment may be

1      King v Jacks [2022] NZHC 918.

2      King v Jacks [2022] NZHC 219.

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

recalled] where for some … very special reason justice requires that the judgment be recalled”. It is well-established the discretion to recall under this limb must be exercised with circumspection and is not a substitute for an appeal.4 Applications which merely seek to relitigate matters already considered, or to challenge substantive findings of fact and law, will not be entertained.5 Mr Sandelin, on behalf of Ms Jacks, emphasised that the Court of Appeal has held that cases in which justice will require a recall under the third category identified in Horowhenua County are likely to be rare,6 particularly when the discretion to recall is exercised in relation to a costs order.7

[5]    Mr King relied upon the dicta of Neuberger J in Re Blenheim Leisure (Restaurants) Ltd (No 3) that reasons for recall could include:8

[A]   plain mistake on the part of the courts; a failure of the parties to draw to the court's attention a fact or point of law that was plainly relevant; or discovery of new facts subsequent to the judgment being given. ...

[6]    In that case a plain mistake on the part of the Court was considered to be sufficient to provide grounds for the judgment to be recalled. Mr King maintains the recent concession by Ms Jacks regarding the appointment of Perpetual Guardian on a permanent basis falls into the category of “discovery of new facts” which should result in the recall of the costs judgment. Mr King also seeks to rely upon other factual considerations, including the state of pre-hearing negotiations regarding the sale of the trust property, contended breaches by Ms Jacks of her undertaking to the Court to pay the property’s mortgage and proposed arrangements regarding its sale, which he says bear on the reasonableness of his actions in contrast to the submitted inappropriate proposals made by Ms Jacks. Mr King offers to provide further affidavit evidence in respect of these issues.

Decision

[7]    Mr King’s application for recall is declined. Ms Jack’s consent to the permanent appointment of Perpetual Guardian, as sought by Mr King in the

4      Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [23] and [34].

5      Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23].

6      Unison Networks Ltd v Commerce Commission, above n 4, at [23] and [34].

7      Murren v Schaeffer [2019] NZCA 34 at [19].

8      Re Blenheim Leisure (Restaurants) Ltd (No 3) [1999] TLR 4, cited in Unison Networks Ltd v Commerce Commission, above n 4, at [32].

substantive proceeding, does not constitute the “discovery of a new fact”, at least insofar as the issue of costs is concerned, relating to the hearing and determination of the interlocutory application limited to the question of interim orders. Mr King’s application for recall conflates the issue of costs as they relate to the interlocutory application with the substantive proceeding itself.

[8]    While, as I acknowledged in my judgment on the interlocutory application, Mr King sought to enlarge his application for an interim appointment of Perpetual Guardian to its appointment on a permanent basis, Ms Jacks was unwilling to dispose of the substantive proceeding in that context. The extent that influences the question of costs on the substantive proceeding, in light of her having subsequently consented to a permanent appointment, will have to be assessed by the Judge who deals with any application for costs in respect of the substantive matter. It does not bear on the question of costs that was before me which was limited to the hearing and determination of the interlocutory application.

[9]    Insofar as Mr King seeks to raise other various matters which he says affects the merits of conclusions reached by me in the course of my costs judgment, he essentially seeks to challenge factual findings and relitigate the decision. Such matters do not provide a proper basis to seek recall. Contended errors of fact or law are more appropriately pursued by way of an appeal. I understand Mr King filed an application for leave to appeal the costs decision on 1 June 2022.

Result

[10]The application for recall of my costs judgment of 4 May 2022 is dismissed.

[11]Cost on the recall application are reserved.