King v Norfolk Nominees Limited
[2019] NZCA 577
•21 November 2019 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA536/2014 [2019] NZCA 577 |
| BETWEEN | PAUL ANTHONY KING |
| AND | NORFOLK NOMINEES LIMITED |
| Court: | Kós P, Brown and Clifford JJ |
Counsel: | Applicant in person |
Judgment: | 21 November 2019 at 10 am |
JUDGMENT OF THE COURT
The application for recall is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by Clifford J)
On 16 October 2019, we struck out this appeal for want of prosecution.[1] Mr King now applies for recall of that judgment on the basis that it incorrectly recorded that he was adjudicated bankrupt to Norfolk Nominees Ltd, when the relevant company was in fact Norfolk Financial Management Ltd. Mr King suggests the intituling consequently identified the incorrect respondent.
[1]King v Norfolk Nominees Ltd [2019] NZCA 494.
This is not the first time the question of the correct respondent has arisen. In his notice of appeal, Mr King originally named Norfolk Financial Management Ltd as the respondent. In 2015, in a judgment dismissing Mr King’s application for a review of the Registrar’s decision on security for costs, Stevens J determined that was not the correct respondent, and ordered that Norfolk Nominees Ltd be substituted:[2]
[2] The notice of appeal listed Norfolk Financial Management Ltd as the respondent. Counsel for the respondent has filed a memorandum dated 6 November 2014 explaining that Norfolk Financial Management Ltd is not the correct party to the appeal. Its debt has now been satisfied. There is however a costs order of $43,405.53 owing to Norfolk Nominees Ltd. That company (referred to here as Norfolk) was substituted as creditor in the High Court and has since taken over as creditor in the bankruptcy proceedings. Mr King still owes Norfolk this sum for costs. Norfolk is therefore substituted as the correct respondent in this Court.
[2]King v Norfolk Nominees Ltd [2015] NZCA 16 (footnotes omitted). See also Norfolk Financial Management Ltd v King HC Christchurch CIV-2013-409-1192, 11 November 2014 (Minute of Associate Judge Matthews).
As the Judge recorded, the confusion as to the correct respondent in this Court followed an error by the Associate Judge in the High Court:[3]
Norfolk Financial Management Ltd was incorrectly listed as the applicant in the decision adjudicating Mr King bankrupt, a judgment released after the decision substituting Norfolk Nominees Ltd as creditor. This was rectified by Associate Judge Matthews in a minute, reissuing the judgment, noting the correct [applicant] in its text.
[3]At [2] n 3 (citations omitted).
We are satisfied that our judgment correctly identified Norfolk Nominees Ltd as the applicant in Mr King’s bankruptcy and the respondent in this appeal. Mr King suggests that the Associate Judge lacked the power to correct such slips, a point far removed from our judgment. In any case, we are satisfied that the Judge had the necessary power to correct his misidentification of the applicant creditor. Ironically, Mr King invites us to exercise a similar power in this application.
The criteria for recall have not been established.[4]
[4]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
The application for recall is declined.
Solicitors:
Glaister Ennor, Auckland for Respondent
0
2
0