MA v Tay

[2012] NZHC 1387

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8215 [2012] NZHC 1387

BETWEEN  TIAN MIN (MAGGIE) MA Plaintiff

ANDTONY MENG HIANG TAY First Defendant

ANDSELINA SIAW NYUNG TAY Second Defendant

ANDJIREH HOTEL INVESTMENT LIMITED Third Defendant

ANDTONY TAY TRUST LIMITED AS TRUSTEE FOR THE TONY TAY TRUST Fourth Defendant

ANDTONY MENG HIANG TAY AND SELINA NYUNG TAY AND RONALD WILLIAM EDWARD CHERRY AS TRUSTEES OF THE ELSHADAI FAMILY TRUST

Fifth Defendants

ANDROSGO FINANCIAL SERVICES LIMITED

Sixth Defendant

ANDROSHNI GOLIAN Seventh Defendant

Decision:        20 June 2012

DECISION OF ASSOCIATE JUDGE D.I. GENDALL

This decision of Associate Judge Gendall was delivered by the Registrar on 20 June

2012 at 11.00 am under r 11.5 of the High Court Rules.

Solicitors:           Ross Holmes Lawyers, PO Box 33009, Takapuna, Auckland 0740

Jeffrey Ng, PO Box 36026, Northcote, North Shore City

TM (MAGGIE) MA V TMH TAY HC AK CIV-2011-404-8215 [20 June 2012]

[1]      On 16 May 2012 I gave judgment in this matter granting the plaintiff’s summary judgment application which was before the Court against the first, second, third and fourth defendants but refusing summary judgment against the fifth defendant.

[2]      Subsequently on 13 June 2012 the first, second, third and fourth defendants filed an application to recall this judgment together with supporting affidavits.

[3]      That application was opposed by the plaintiff in a Notice of Opposition filed

15 June 2012.

[4]      That opposed application together with supporting material has now been referred to me for decision.  I now give that decision.

[5]      The grounds set out in the  Application for Recall filed by the first, second, third and fourth defendants are set out at para 2 of their application as follows:

2.          The grounds on which each order is sought are as follows:

(i)        Judgment was entered against defendants on 16 May 2012 in the sum of $403,034.44;

(ii)       Judgment was entered “taking into account” [89] an undisputed transcript prepared by the plaintiff from recordings taken (by the plaintiff) of two meetings held between the parties in September

2011 (“the transcript”);

(iii)      A copy of the CD-ROM recording those meetings was provided to the defendants’ on 11th April 2012 (just over 3 weeks prior to the hearing);

(iv)       The defendants’ were provided insufficient time before the hearing

to scrutinise the translation;

(v)       The defendants’ have now had the opportunity to have the CD- ROMs translated and have discovered that:

(a)        The transcript is not accurate;

(b)        Prior to the filing of the plaintiff ’s affidavit in support of the summary judgment (19th  December 2011) and following that  date  (but  prior  to  the  CD-ROM being provided to the defendants) the CD-ROM has been modified.

(vi)       In the circumstances there are special reasons for the judgment to be recalled as there has been a discovery of new facts;

(vii)      There are exceptional circumstances why the judgment should be reopened and it is in the interests of justice that it should be.

[6]      An Application to Recall a Judgment is made under r 11.9 High Court Rules and the leading statement on recall remains that of Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633:

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.

[7]     As McGechan on Procedure at para HR11.9.01 notes, this statement in Horowhenua County has been applied by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122 and by the Court of Appeal in a number of other cases.

[8]      In Erwood v Maxted [2010] NZCA 93 at 23 the Court of Appeal set out guidelines to deal with the proliferation of what were seen as unjustified applications to recall judgments in that Court. The guidelines distinguish between correction of accidental slips and omissions and applications for recall indicating that in respect of the latter the criteria set out in Horowhenua County will be strictly applied.

[9]      The underlying policy in all this is clearly to reconcile the broad ends of justice in relation to the particular case and the desirability of finality in litigation at first instance – Ashe v Tauranga Marina Society (1991) 4 PRNZ 89.

[10]     In  the present  case the transcript  evidence of which the defendants now complain was also referred to at para [87] of my judgment in the following way:

[87] On all of this, Ms Ma in her 19 December 2011 affidavit has referred to other evidence she has placed before the Court, representing what she deposes are the English translations and transcripts of some of the important passages of conversations between the various parties which took place at the two earlier meetings on 22 and 30 September 2011 noted at [53] above. The evidence before me shows that on 11 April 2012 a copy of the CD-ROM recording (in Mandarin) those meetings was

forwarded to counsel for the affected defendants. No challenge of any kind has been made to any of this evidence translated by Ms Ma. Indeed Mr Tony Tay in his evidence before me being his 15 March 2012 affidavit has not disputed or even made any reference to this evidence nor has he made any comment about these two September 2011 meetings which he attended.

[11]     I  repeat  what  I  noted  in  my  judgment  that  this  evidence  had  not  been challenged in any way by the defendants despite the fact that they had had access to it and the CD-ROM in question from 11 April 2012.   In addition, the September meetings were first referred to by the plaintiff in her 19 December 2011 affidavit at paras [61] – [77] in some detail but until now, no reference has been made to any of these conversations by the first defendant in particular in any of his affidavits.

[12]     Also, as I have noted at para [89] of my judgment, this undisputed transcript evidence added some explanation and background colour to the 13 October 2011

Heads of Agreement and the 15 October document.  My judgment clearly indicated that the transcript evidence was to be taken into account but only as one part of all the evidence and other matters I had previously referred to in my judgment.  On this basis, I was satisfied that summary judgment should be granted.

[13]     Accordingly,  I  reached  the  conclusions  outlined  in  my  judgment  and summary judgment was granted against the first, second, third and fourth defendants.

[14]     In my view, this is not an appropriate case to entertain the present Application for Recall.  The proper course if the first, second, third and fourth defendants were dissatisfied with that judgment is to bring an appropriate appeal and/or to apply for a rehearing on the alleged basis of new evidence.  Whether or not that may have been done is a matter for them.

[15]     The broad ends of justice in this particular case clearly in my view require that my judgment of 16 May 2012 must stand.  There are no “very special reasons” here, as specified in Horowhenua County at [633], why justice requires that the judgment be recalled.

[16]     The application for recall is dismissed.

‘Associate Judge D.I. Gendall’