Maidavale Management Ltd v Lake View Estate Residents Society Incorporated

[2024] NZHC 3291

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-000525

[2024] NZHC 3291

BETWEEN

MAIDAVALE MANAGEMENT LIMITED

First Plaintiff

HOWARD STANLEY MOORE and GILLIAN PATRICIA MOORE

Second Plaintiffs

KENNETH and SERENA MUIR and MKG RESOURCES LIMITED

Third Plaintiffs

SELWYN CURRIE and LIZ YATES
Fourth Plaintiffs …../cont’d

AND

LAKE VIEW ESTATE RESIDENTS SOCIETY INCORPORATED

First Defendant

VERMONT STREET PARTNERSHIP (NO 1) LIMITED

Second Defendant

Hearing:	On the papers
Counsel:	M Heard and B Forbes for Plaintiff and Second Defendant D Shahtahmasebi and T M Milne for First Defendant
Judgment:	7 November 2024

JUDGMENT OF ANDREW J

[Application for recall]

This judgment was delivered by Justice Andrew

on 7 November 2024 at 3.00 pm, pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar

Date ……………………………

MAIDAVALE MANAGEMENT LTD v LAKE VIEW ESTATE RESIDENTS SOCIETY INC [2024] NZHC

3291 [7 November 2024]

RAY and CHRISTINE OXENHAM

Fifth Plaintiffs

JASON HAMBROOK and CHERIE LOVETT

Sixth Plaintiffs

ANDLAKE VIEW ESTATE RESIDENTS SOCIETY INCORPORATED

First Defendant

VERMONT STREET PARTNERSHIP NO 1 LIMITED

Second Defendant

Introduction

[1]                 At [73] of my judgment of 22 October 2024,1 I recorded that “the plaintiffs have not sought a formal declaration as to breach of the Settlement Agreement”.

[2]                 The plaintiffs say that their second amended statement of claim of 24 July 2024 seeks at [74](c):

A declaration that the Society is in breach of the Award if it does not complete all the works required by the Roading Undertaking by 9 August 2025.

[3]                 The plaintiffs note that they also sought “such other relief as the Court sees fit”.

[4]                 The plaintiffs seek that my judgment be recalled under r 11.9 of the High Court Rules 2016 and that I make a declaration in the terms I see fit in response to the prayer for relief in [74](c) of the said second amended statement of claim.

[5]                 The application for recall is opposed by the defendant for both procedural and substantive reasons.

Relevant legal principles

[6]Rule 11.9 of the High Court Rules reads:

Recalling judgment

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.

[7]                 The discretion to recall must be exercised with circumspection and must not in any way be seen as a substitute for an appeal.2

[8]                 The leading statement in New Zealand remains that of Wild CJ, Horowhenua County v Nash (No 2):3

1      Maida Vale Management Ltd v Lake View Estate Residents Society Inc [2024] NZHC 3073.

2      Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13]; see also Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [5].

3      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) 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.

[9]                 In Erwood v Maxted,4 the Court of Appeal set out guidelines to deal with the proliferation of unjustified applications to recall judgments in that Court. The guidelines distinguish between the correction of accidental slips and omissions, and applications for recall, indicated in respect of the latter, the criteria set out in Horowhenua County will be strictly applied.

Analysis and decision

[10]             I do not find it necessary to determine whether leave was required for the filing of the second amended statement of claim. In any event, I would note that the focus of the plaintiffs throughout the proceedings was on the appointment of a receiver to carry out the roading works. I accept that the plaintiffs also contended that the Lake View Estate Residents Society (the Society) was in breach of the Settlement Agreement and the award, but the primary claim advanced was for the appointment of a receiver. I of course rejected that primary claim.

[11]             The better approach, in my view, is to address the substance of the recall application, namely whether there is a proper basis for making the declaration as to breach that the plaintiffs seek.

[12]             It is important to recall that in my earlier judgment I made no finding that the defendant was in breach of the Settlement Agreement or the award. My findings were that the Society was “at real risk of breaching its road sealing obligations in the Settlement Agreement”.5 I also found that “to date” the Society had misdirected itself as to the extent of its road sealing obligations.6

4      Erwood v Maxted, above n 2.

5      Maida Vale Management Ltd v Lake View Estate Residents Society Inc, above n 1, at [70].

6      Maida Vale Management Ltd v Lake View Estate Residents Society Inc, above n 1, at [73].

[13]             I find that there is no basis to recall my judgment. There is no special reason justice requires that the judgment be recalled. The judgment, as it stands, is fit for purpose in that it clearly outlines the defendants’ obligations under the Settlement Agreement and what will be required for the defendant to ensure that it complies with its obligations.

[14]             As I noted in my earlier judgment, the three-year time period at issue has not yet expired.

[15]             In the circumstances and given my findings that the Society now needs to take “immediate steps” to give effect to its obligations, I see no need to make any further relief in relation to this issue.

[16]For all these reasons, I find that the application for recall should be dismissed.

[17]             Having succeeded, the defendants are entitled to costs on a 2B basis plus disbursements.

Andrew J