Matthews v Memelink
[2021] NZHC 1754
•13 July 2021
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2010-404-8520
CIV-2011-404-1400 [2021] NZHC 1754
BETWEEN CECILE ANN MATTHEWS
Plaintiff
AND
HARRY MEMELINK and CISCA
FORSTER as Trustees of the Link Trust No. 1
Defendants
Hearing: 12 July 2021 Appearances:
D J Rooke for plaintiff
DGO Livingston for defendants
Judgment:
13 July 2021
JUDGMENT OF JAGOSE J
This judgment was delivered by me on 13 July 2021 at 4.30pm.
Pursuant to Rule 11.5 of the High Court Rules.
………………………… Registrar/Deputy Registrar
Solicitors:
David Rooke Law Office, Auckland Livingston & Livingston Limited Gibbs Mills Livingstone, Auckland
MATTHEWS v MEMELINK [2021] NZHC 1754 [13 July 2021]
[1] The plaintiff seeks final orders to seal this Court’s 5 September 2012 judgment.1 In that judgment, Andrews J awarded the plaintiff a half-share in the purchase price of a property, and the defendant trustees a sum in rental of that property for the plaintiff’s occupation of it.2 The “final balance payable” remained to be determined.3 The defendant trustees informally seek to recall Andrews J’s judgment, effectively to redetermine if her Honour’s award to the plaintiff should stand. Otherwise, it is common ground the final balance falls in the plaintiff’s favour.
Recall
[2] In a subsequent proceeding in this Court, Clifford J held on 15 March 2016 the trust’s lawyers were liable to pay the trust negligence damages in the amount of that half-share.4 That judgment was overturned on appeal.5 In doing so, the Court of Appeal observed the half-share’s award to the plaintiff:6
… was attributable not to any negligence on the part of Collins & May Law but to Mr Memelink’s failure to produce at the hearing Ms Matthews’s written acknowledgement that her interest in the Pakuranga property was available to secure and satisfy the indebtedness of Mr Hoyte and/or JHAL to Mr Memelink and Link Technology.
… It is clear that Andrews J was satisfied that the settlement was effected in a way which precluded any personal claim by Mr Hoyte without the need for a fuller explanation of the transaction in the settlement statement. It was Mr Memelink’s failure to put in evidence Ms Matthews’s acknowledgement of 27 May 2004, not anything done on settlement by Collins & May Law, that led Andrews J to find him liable to Ms Matthews for her share of the purchase price.
[3] Mr Memelink now seeks to put in evidence Ms Matthews’ acknowledgment of 27 May 2004 in support of his informal application to recall Andrews J’s decision. His affidavit sworn 9 July 2021 contends it is “a document which was discovered after a decision was released in these proceedings”. The defendant trustees’ counsel, Digby Livingston, explained in answer to my query the document was provided on discovery by the trust’s lawyers in the proceeding brought against them. There is long-
1 Matthews v Memelink [2012] NZHC 2284.
2 At [120] and [123]. The defendant trustees now are Harry Memelink and Cisca Forster, to which this judgment’s entitulement is amended.
3 At [125].
4 Memelink v Collins & May Law [2016] NZHC 442 at [62].
5 Collins & May Law v Memelink [2017] NZCA 541 at [41].
6 At [39]–[40] (footnote omitted).
standing prohibition on collateral use of documents obtained on discovery, at least until referred to in open Court.7 But the document is recited in whole in Clifford J’s judgment,8 implying such reference.
[4] Recall is available on constrained grounds: since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; or for some other very special reason justice requires the judgment be recalled.9 A judgment only may be recalled before the orders it embodies are sealed,10 and then only on those constrained grounds.
[5] As a limited recourse in-road to final judgments, these are high thresholds. Once a court has made an order, there is a significant policy reason for requiring the order to stand as conclusive, unless overturned on such challenge as may be available to affected parties. That reason is the principle of finality in litigation. It is not a principle of absolute finality, because it “accommodates exceptional situations by allowing final determinations to be revisited but within prescribed limits”.11 Underpinning the policy is an expectation the orders reflect the court’s reasoned judgment, arrived at by applying the law to the facts found by it. Rather than recall to address omissions, substantive errors in that finding, application or reasoning may be susceptible to challenge. If not, or until successful challenge, the orders stand.
[6] The defendant trustees rely on the “very special reason” ground. It is a narrow ground, which “does not extend to a challenge of any substantive findings of fact and law in the judgment”.12 I do not see how the ground avails the defendant trustees here: Andrews J’s judgment issued on the basis of the evidence before her. I have no
7 Wilson v White [2005] 3 NZLR 619 (CA) at [47]–[50], now stipulated in the High Court Rules 2016, r 8.30(4).
8 Memelink v Collins & May Law, above n 4, at [34].
9 Williams v Auckland Council [2016] NZSC 130 at [4], citing Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2] (citing Horowhenua County v Nash (No 2) [1968 NZLR 632 (SC) at 633, and referring also to Rainbow Corporation Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493 (CA) and Unison Networks Ltd v Commerce Commission [2007] NZCA 49).
10 High Court Rules, r 11.9.
11 Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].
12 Zhang v Yu [2020] NZCA 592 at [9], citing Unison Networks Ltd v Commerce Commission, above n 9, at [23] and [34] and Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [9].
explanation as to how or why the evidence omitted the document. As a document discovered by the trust’s lawyers in the other proceeding, it must have been a document in the defendant trustees’ power, possession or control at the time of their discovery in the present proceeding.13 Had it been tendered in evidence, presumably the plaintiff similarly would have denied the document.14 Its alternative spelling of her forename may have given a denial some substance. It is not conclusive of an alternative outcome.
[7] Arguments to the justice of recall also would have to address the five-year or more delay in seeking to rely on the document in this proceeding.15 Andrews J did not retire until 29 September 2015, just after Clifford J heard the other proceeding in which the document was discovered. Presumably the defendant trustees were aware of the document from some earlier date in those 2012 proceedings. Even if the document only could be used for collateral purpose after reference to it was made in trial, there still was a two-week window for that to be raised with Andrews J.
[8] Last, the orthodox means of challenging Andrews J’s judgment is by appeal, including by seeking leave to adduce further evidence as “fresh, credible and cogent”.16 There are “very strict” constraints.17 The time for bringing such appeal as of right now long having expired, recall should not be permitted effectively to avoid seeking an extension of time to appeal and then to satisfy subsequent criteria. I will not permit it.
Corrections
[9] Andrews J’s judgment refers to “interest at the applicable rate under the Judicature Act [1908], up to the date of payment”,18 and “[a] fair market rental for the
13 High Court Rules 2016, r 8.7 (and its predecessors).
14 See Matthews v Memelink, above n 1, at [54]–[60]; and Memelink v Collins & May Law, above n 4, at [30].
15 The plaintiff’s delay in finalising the judgment is more explicable given her uncertainty of access to any fund until its payment into Court on 24 September 2020 (despite 28 February 2019 orders for the same), and perhaps also the range of satellite proceedings involving Mr Memelink.
16 Court of Appeal (Civil) Rules 2005, r 45; Paper Reclaim Ltd v Aotearoa International Ltd (Further Evidence) (No 1) [2006] NZSC 59, [2007] 2 NZLR 1 at [8]; and Erceg v Balenia Ltd [2008] NZCA 535 at [15].
17 Kumar v Saily [2020] NZCA 376 at [25]–[26], also citing Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192–193 and Airwork (NZ) Ltd v Vertical Flight Management Ltd [1999] 1 NZLR 641 (CA) at 649–650.
18 Matthews v Memelink, above n 1, at [120] (emphasis added).
property …, plus GST”.19 There is no dispute the emphasised phrases err: interest under the Act authorised only inclusion of interest on the judgment sum “for the whole or any part of the period between the date when the cause of action arose and the date of the judgment”;20 and, the property being used to supply accommodation in a dwelling, such supply is exempt from goods and services tax.21 I am satisfied those are errors arising from accidental slips, rather than deliberative errors, and therefore stand to be corrected.22
[10] Although Andrews J reserved “the final balance payable”, the calculation only is arithmetical; her Honour’s judgment stipulated the quantum of each the half-share and the fair market rental. Thus the relevant ‘date of judgment’ here is 5 September 2012. On that basis, for the remaining determination, counsel agree:
(a)the plaintiff is entitled to be paid $155,715.33 plus $69,192.11 interest to the date of the judgment; and
(b)the defendants are entitled to be paid $151,405.71 plus $26,607.85 interest to the date of the judgment.
At 5 September 2012, then, the plaintiff’s net entitlement was to be paid $46,893.88. I will order accordingly. Thereafter, interest automatically accrues until it is satisfied.23
Security
[11] In light of the plaintiff’s caveat over the trust property, in January 2013, a sum of $60,000 was ordered by consent to be retained from the property’s prospective sale and held in the defendant trustees’ solicitors’ trust account “pending further order of the Court or agreement by both counsel as to the disbursement of the funds”.24 Reading between the lines, the sum was ordered as security for payment of the plaintiff’s net entitlement. In February 2019, again by consent, that sum was ordered to be
19 At [123] (emphasis added).
20 Judicature Act 1908, s 87(1) (emphasis added).
21 Goods and Services Tax Act 1985, s 14(1)(c)–(cb). The Judge subsequently acknowledged the reference to “plus GST” erred: Matthews v Memelink HC Auckland CIV-2010-404-8520, 27 June 2014 (Minute No 2 of Andrews J) at [3(b)–(c)] .
22 High Court Rules, r 11.10.
23 Judicature Act, sch 2 r 11.27(1) (reprint as at 14 June 2012).24 Matthews v Memelink HC Auckland CIV-2010-4040-8520, 15 January 2013 (Minute of Courtney J) at [3(b)].
transferred into Court. Although the earlier orders expressly were rescinded, no rationale was proposed for their substitution (particularly given the intermediate discovered document), and their implied purpose remains.
[12] Given the immediate availability of that sum to satisfy execution of the judgment, I am minded to have my orders lie in Court for a brief period, to enable the defendant trustees opportunity (if they wish it) to seek execution’s stay pending determination of any application for an extension of time in which to appeal.25 The plaintiff’s counsel, David Rooke, only could plead the desirability of complete finality against such brief delay. Given the proceeding’s history, such delay is not prejudicial.
[13] In those circumstances, the threshold for stay does not fall far short of the threshold for an extension of time, which in present circumstances must address also the threshold for leave to adduce further evidence. Any application for stay must be accompanied by a draft application for, and any evidence as would be relied upon in support of, such extension (including to adduce further evidence). Any opposition must be filed and served promptly thereafter. Given this proceeding presently is allocated to me, unless either party requires to be heard, I will address any application for stay on those papers.
Result
[14] I order, as at 5 September 2012, the defendant trustees were liable to pay the plaintiff the net sum of $46,893.88.
Costs
[15]By consent, costs are to lie where they fell.
Next steps
[16] I direct my order lies in Court pending the defendant trustees’ filing of any application for stay in terms of [13] above within five working days of the date of this judgment, any opposition to be filed and served within five working days after service.
25 Court of Appeal (Civil) Rules, r 29A.
[17] Absent such filing, on sealing Andrews J’s and my judgments, the Registrar is to transfer to the plaintiff from the sum held by the Registry as security in this proceeding the judgment sum at [14] above, plus interest calculated in accordance with r 11.27(1) of the High Court Rules (as it applied at 5 September 2012), any balance to be reimbursed to the defendant trustees.
—Jagose J
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