Meads v Muldrew
[2021] NZHC 3215
•29 November 2021
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 v Meads [2021] NZFC 1096 at [180].
4 Erwood v Maxted, 2010] NZCA 93 at [3].
5 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633.
[5] It is apparent that the only category in which the application for recall could fall is the third category identified by Wild CJ – where for some other very special reason justice requires that the judgment be recalled. None of the reasons advanced by Mr Meads comes close to constituting a very special reason justifying recall.
The Calderbank offers
[6] As Mr Meads correctly observes, I did not deal directly with the Calderbank letters that Ms Muldrew and Mr Meads he exchanged earlier in the proceeding, although I did deal with the substance of the point Mr Meads seeks to make. Nor did I make an express finding on Mr Meads’ submission that it was relevant that Judge von Keisenberg did not consider the substantive success of the parties in the light of the Calderbank offers.
[7] In his memorandum, as he did in his written and oral submissions, Mr Meads makes various points about Ms Muldrew’s conduct of the proceeding and, in effect, invites the Court to revisit the merits of the Substantive Decision. As I said to Mr Meads at the hearing on 16 November 2021 and recorded in my decision, that is not appropriate in an appeal on costs.6 That is why I did not address those matters in my judgment and do not address them now. Whatever the conduct of the parties, Judge von Keisenberg awarded scale costs and made no adjustment for the manner in which the parties conducted the proceeding.
[8] On the discrete point that Mr Meads seeks to make, namely that Ms Muldrew’s substantive success was less than the $60,000 Mr Meads offered in 2016 to settle the proceeding, there is no basis for the Court to entertain that submission.
[9]In her orders, Judge von Keisenberg directed that: 7
(a)Ms Muldrew was to have half the net equity in the property at Cathedral Place; and that
6 Meads v Muldrew, above n 1, at [66].
7 Muldrew v Meads, above n 3, at [180].
(b)Mr Meads was to pay Ms Muldrew:
(i)Occupation rent for Cathedral Place at the rate of $125 per week for some four years and four weeks, i.e. $26,500;8
(ii)$135,000 in compensation for Mr Meads’ use of relationship funds to finance McLellan Place; and
(iii)$5,000 for Ms Muldrew’s half share of the relationship chattels.
[10] It follows that the only way Mr Meads’ proposition can be correct is if the Court accepts that there is a negative equity in Cathedral Place such as to offset the
$166,500 Mr Meads must pay Ms Muldrew under Judge von Keisenberg’s other orders. To reach that conclusion, the Court would have to accept the accuracy of the Retrospective Valuation of Cathedral Place and the Loan Analysis that Mr Meads sought to adduce and which I declined to admit in evidence on appeal for the reasons given at [79] of my judgment.9
[11] There is, therefore, no evidence to support Mr Meads’ assertion that Ms Muldrew’s substantive success was less than the $60,000 that Mr Meads’ offered in 2016. If Mr Meads had wanted to advance that argument, he should have done so in his submissions on costs to Judge von Keisenberg. As I said at [78(b)] of my judgment, the Retrospective Valuation is not fresh evidence. It could have been obtained and, subject to leave, put in evidence at any point leading up to the hearing.
[12] Because there was no evidence before Judge von Keisenberg about the net equity of Cathedral Place, there was no basis for the Judge to make a finding that Ms Muldrew had recovered less than the amount offered in settlement by Mr Meads. On the information before the Judge, Mr Meads’ Calderbank letter was not relevant.
8 The period was from the date of separation, 28 August 2016, to the date of hearing, 30 September 2020.
9 Meads v Muldrew, above n 1.
Ms Muldrew, very reasonably, did not seek an increase in costs on the basis of her Calderbank letter. Therefore, that letter too was not relevant.
[13] That is sufficient to dispose of the point Mr Meads raises. I decline Mr Meads’ invitation to make more general observations about what constitutes success in relationship property proceedings.
The asserted credibility finding
[14] Mr Meads asks that I consider reversing or addressing an asserted adverse credibility finding by Judge von Keisenberg concerning the sum of $54,391 which the Judge found had been transferred from joint property to meet Mr Meads’ personal costs and had not been re-paid. Mr Meads says that mischaracterised what occurred.
[15] Whether or not Judge von Keisenberg was correct – and I note that she observed that Mr Meads was cross-examined at length on this issue and that his evidence was difficult to follow10 – I do not accept that the Judge made a finding of credibility on this question. Having listened to the evidence, the Judge made a finding about the source of the funds and found there was insufficient evidence to conclude that the amount had been repaid.11 She did not comment on Mr Meads’ credibility.
[16] Even if the Judge had made a finding on credibility, that cannot be remedied in an appeal of a costs decision. The time to do that was at the substantive appeal before Woolford J, who considered the transfer of those funds between accounts to be something of a red herring because, at the end of the day, whatever their source, the funds were used to pay relationship costs.12
[17]There is nothing in this issue that bears on costs.
10 Muldrew v Meads, above n 3, at [172].
11 At [173].
12 Meads v Muldrew [2021] NZHC 1864 at [81].
Result
[18] In summary, there is nothing of substance in the points Mr Meads raises. They fall very far from establishing a very special reason such that justice requires that the judgment be recalled.
[19]The application for recall is dismissed.
G J van Bohemen J
0
2
1