Mailley v Shaw - [2021] NZHC 2876

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2015-404-1185

[2021] NZHC 2876

BETWEEN
MARTIN MAILLEY

First Plaintiff

SABRINA NUTARELLI
Second Plaintiff

AND

ANTONY SHAW

First Defendant

TONY ELLIS (Discontinued) Second Defendant

THE NEW ZEALAND LAW SOCIETY

Third Defendant

On papers

Judgment:

28 October 2021

JUDGMENT OF TOOGOOD J

[Applications for recall of costs judgment and minute of Associate Judge Andrew on strike-out]

This judgment was delivered by me on 28 October 2021 at 10am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:
Doug Cowan, Auckland for first defendant
Lee Salmon Long, Auckland for third defendant

Copy to:
The plaintiffs

MAILLEY v SHAW [2021] NZHC 2876 [28 October 2021]

Introduction

[1] On 24 November 2020, Associate Judge Andrew delivered a judgment striking out all causes of action by the plaintiffs against the defendants (the strike-out judgment).1 In a judgment dated 21 April 2021, the Associate Judge awarded costs to the defendants (the strike-out costs judgment).2 On 9 September 2021 , I issued a judgment on an application by the plaintiffs for a review of the strike-out judgment under s 26P(l) of the Judicature Act 1908, in accordance with r 2.3 of the High Court Rules (the strike-out review judgment).3 I dismissed the application and made ancillary orders and directions. I reserved questions of costs.

[2] At [134(d)] of the strike-out review judgment, I dismissed an application dated 14 July 2021 by Mr Mailley (the second recall application) seeking a decision of Associate Judge Andrew recalling the strike-out costs judgment “so far as it concerns his recusal”.4 In doing so, I conflated the second recall application with an earlier application by Mr Mailley for recall dated 13 July 2021 (the first recall application), as Mr Mailley has pointed out. Moreover, in dismissing the second recall application, I failed to address an argument by Mr Mailley that Associate Judge Andrew should have recalled the strike-out costs judgment, before considering the second recall application on the basis that the Associate Judge had not taken account of a recusal application filed by Mr Mailley on 20 April 2021.

[3] I remedy those errors in a minute issued contemporaneously with this judgment by:

(a)Recalling the strike-out review judgment.

(b)Amending the strike-out review judgment by replacing the entire text of [134(d)] with the following:

1      Mailley v Shaw [2020] NZHC 3102.
2      Mailley v Shaw [2021] NZHC 841.
3      Mailley v Shaw [2021] NZHC 2359.
4      In the strike-out costs judgment, Associate Judge Andrew dismissed an application dated 11 February 2021 by Mr Mailley for the Associate Judge to recuse himself from determining the defendants’ applications for costs on the strike-out judgment: Mailley v Shaw, above n 2, at [4]-[11].

Fourth, there are further interlocutory applications dated 13 July 2021 and 14 July 2021 seeking to recall the costs judgment of Associate Judge Andrew of 21 April 2021 and his subsequent minute of 23 April 2021. It is…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mailley v Shaw

Details

AGLC: Mailley v Shaw [2021] NZHC 2876
Case: [2021] NZHC 2876
Decision Date: 28 October 2021

CaseChat Overview and Summary

This case concerns applications by the plaintiffs for recall of a costs judgment and minute of the Associate Judge, and a review of the strike-out judgment. The plaintiffs, Martin Mailley and Sabrina Nutarelli, sought to recall the strike-out costs judgment and minute of the Associate Judge, which had dismissed their application for the Associate Judge to recuse himself and declined a second recusal application. The defendants, Antony Shaw and the New Zealand Law Society, opposed the recall applications and sought costs. The legal issues included whether the Associate Judge had properly considered the recusal applications and whether the recall applications were justified. The court found that the Associate Judge had properly considered the recusal applications and that the recall applications were not justified. The court dismissed the recall applications and ordered the plaintiffs to pay the defendants' costs.

Orders