Meads v Muldrew - [2021] NZHC 3215

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2021-404-001666

[2021] NZHC 3215

UNDER The Property (Relationships) Act 1976

BETWEEN

SCOTT BRADLEY MEADS

Appellant

AND

KATIE SARAH MULDREW

Respondent

Hearing: On the papers

Appearances:

Appellant in person

A H H Choi for the Respondent

Judgment:

29 November 2021

JUDGMENT OF VAN BOHEMEN J

[on application for recall]

This judgment was delivered by me on 29 November 2021 at 11am Pursuant to Rule 11.5 of the High Court Rules

…………………………

Registrar/Deputy Registrar

Solicitors/Counsel:
A HH Choi, Barrister, Auckland
ARL Lawyers, Lower Hutt, Wellington Copy to:
The Appellant

MEADS v MULDREW [on application to recall] [2021] NZHC 3215 [29 November 2021]

Introduction

[1] On 25 November 2021, I issued my judgment1 dismissing an appeal by Mr Meads against a costs decision made by Judge R von Keisenberg in the Family Court (Costs Decision).2 The Costs Decision followed a substantive decision in which Judge von Keisenberg granted most of the orders sought by Ms Muldrew (Substantive Decision).3

[2] Also on 25 November 2021, Mr Meads filed a memorandum seeking recall of my judgment pursuant to r 11.9 of the High Court Rules 2016. Mr Meads does not take issue with the substantive findings in the judgment. Rather, he raises one issue that was not addressed directly in the judgment and asks the Court to reverse what he considers to be a credibility finding in the Substantive Decision in relation to an issue that I did discuss in my judgment. Mr Meads also draws the Court’s attention to typographical errors in my judgment.

[3] For the reasons that follow, I decline Mr Meads’ application to recall my judgment. However, I am reissuing the judgment to correct the typographical errors.

Reasons for recall

[4] Despite the broad terms in which r 11.9 is cast, it is well established that the recall of a judgment is a serious step to be taken only in reasonably well identified situations and is not a substitute for an appeal. As the Court of Appeal said in Erwood v Maxted,4 the principles governing recall of a judgment are well settled and are set out in Horowhenua County v Nash (No 2) where Wild CJ said:5
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.

1      Meads v Muldrew [2021] NZHC 3184.
2      Muldrew v Meads [2021] NZFC 7037.
3      Muldrew…

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 Meads v Muldrew

Details

AGLC: Meads v Muldrew [2021] NZHC 3215
Case: [2021] NZHC 3215
Decision Date: 29 November 2021

CaseChat Overview and Summary

The High Court of New Zealand considered an application for recall in the case of Meads v Muldrew, a dispute under the Property (Relationships) Act 1976. Scott Bradley Meads appealed against a costs decision made by Judge R von Keisenberg in the Family Court. The substantive decision had granted most of the orders sought by Katie Sarah Muldrew. Meads sought recall of the judgment on the basis that certain issues were not directly addressed and typographical errors were present. The legal issues centred around the appropriate circumstances under which a judgment may be recalled and the relevance of Calderbank offers in determining substantive success and costs.

The court found that the application for recall did not fall into any of the established categories warranting such action. It noted that the recall of a judgment is a serious step, not a substitute for appeal, and should only be exercised in special circumstances. Regarding the Calderbank offers, the court held that the substantive success of the parties was determined by Judge von Keisenberg's orders, not by the offers made. The court declined to entertain Meads' submission that Muldrew’s success was less than the settlement offer, as there was no evidence to support this claim. Additionally, the court clarified that Judge von Keisenberg did not make a credibility finding on the transfer of funds, and any such issue should have been addressed during the substantive appeal.

The application for recall was dismissed, and the judgment was reissued to correct typographical errors. The court's decision emphasised the limited grounds for recall and the importance of adhering to established legal principles in such matters.

Orders