Moeke v Eparaima - [2025] NZHC 1033

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CIV-2023-463-30

[2025] NZHC 1033

UNDER the Contract and Commercial Law Act 2017 the Property Law Act 2007, Interest on Money Claims Act 2016 and the Land Transfer Act 2017

IN THE MATTER OF

a breach of contract for the sale of land

BETWEEN

FORD BENJAMIN MOEKE
Plaintiff

AND

VANESSA EPARAIMA, CONSTANCE HUI, JOHN SPENCER and JONATHAN MICHAEL STOKES

First Defendants

Continued …

Hearing: On the papers

Appearances:

G J Judd KC for the Plaintiff

W A Holden/M A Cavanaugh/E Abbot for the First Defendants M J Fisher/K M Blockley for Messrs Glucina and Van Rooijen, M Parker for the Fourth Defendant

Judgment:

2 May 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application to recall a judgment]

This judgment was delivered by me on 2 May 2025 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules

………………………….
Registrar/Deputy Registrar

MOEKE v EPARAIMA [2025] NZHC 1033 [2 May 2025]

Continued …

AND
JENNY SHATTOCK, JEFF GASH, MARIN GLUCINA, BILL MACHEN, ARAMA NGAPO-LISCOMBE, PETER SCHULTE, HERMAN VAN ROOIJEN and ADRIENNE BELL

Second Defendants

BENJAMIN ERIC SMITH
Third Defendant

HAMISH DOUCH
Fourth Defendant

MIKE BRACKEN

Fifth Defendant

TABLE OF CONTENTS

Paragraph

Introduction [1]

Legal principles [7]

Plaintiff’s submissions [8]

Messrs Glucina’s and van Rooijen’s opposition [12]

Result [17]

Orders [18]

---

Introduction

[1] The Court issued a judgment dated 24 March 2025 (the Costs Judgment)1 awarding the first defendants costs as against the plaintiff in relation to the discontinuance of the plaintiff’s summary judgment application and costs in respect of various interlocutory applications in relation to the summary judgment application in which the defendants had been successful as against the plaintiff.

[2] Counsel for the plaintiff filed a memorandum dated 26 March 2025 seeking recall of the Costs Judgment. The application for recall of the Costs Judgment was principally on the basis that counsel had failed to draw the Court’s attention to the decision in Australian Guarantee Corporation (NZ) Ltd v McBeth.2

[3] In response to counsel for the plaintiff’s application for recall of the Costs Judgment, counsel for the respective defendants filed the following memoranda in response:

(a)Counsel for the fourth defendants filed a memorandum dated 27 March 2025;

(b)counsel for the first defendants filed a memorandum dated 3 April 2025;

(c)counsel for third and seventh-named second defendants (Messrs Glucina and van Rooijen) filed a memorandum dated 2 April 2025.

The memoranda filed by the defendants’ counsel oppose the plaintiff’s application for recall of the Cost Judgment.

1 Moeke v Epairama [2025] NZHC 611.
2 Australian Guarantee Corporation (NZ) Ltd v McBeth [1992] 3 NZLR 54.

[4] Having received the memoranda filed by counsel for the defendants, counsel for the plaintiff then filed a memorandum dated 4 April 2025 in which:

(a)the application to recall the Costs Judgment was abandoned;

(b)the plaintiff made an application to recall the Court’s judgment declining the plaintiff’s application for leave to…

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.

Keep reading for free

Create a free CaseChat account to read Moeke v Eparaima and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2025] NZHC 1033
Decision Date: 2 May 2025

CaseChat Overview and Summary

The case of Moeke v Eparaima was heard by the High Court of New Zealand, Rotorua Registry, where Ford Benjamin Moeke, the plaintiff, sought to recall a judgment that awarded the first defendants costs as against him. The judgment in question pertained to the discontinuance of the plaintiff's summary judgment application and the costs associated with several interlocutory applications. The plaintiff's application for recall was based on the argument that counsel had failed to draw the court's attention to the decision in Australian Guarantee Corporation (NZ) Ltd v McBeth. The defendants opposed the recall, arguing that the plaintiff's application was an abuse of process as it sought to revisit a matter that had already been concluded by the plaintiff's discontinuance of the summary judgment application.

The court considered the principles governing the recall of a judgment, as established in Horowhenua County v Nash. These principles recognise that a judgment must generally stand, but there are circumstances under which a judgment may be recalled, such as when there has been a relevant change in the law or when counsel fails to bring to the court's attention a pertinent statutory provision or judicial decision. The plaintiff argued that counsel's omission to refer to the Australian Guarantee Corporation decision was a failure to point out an authoritative decision of plain relevance. However, the defendants contended that the plaintiff's application for recall was an abuse of the court's process, as it attempted to re-litigate issues that had already been resolved by the discontinuance of the summary judgment application.

The court found that the plaintiff's application to recall the Leave to Appeal Judgment should be dismissed, as it was an abuse of process. The court held that there was no utility in appealing the interlocutory decision granting leave to certain defendants to oppose the now discontinued summary judgment application. The court further ruled that the reliance on the Australian Guarantee Corporation decision was misplaced and that counsel was not required to refer to it under the circumstances. Consequently, the plaintiff's application to recall the Costs Judgment was also dismissed.

The court ordered that the plaintiff's application to recall the Leave to Appeal Judgment be dismissed, and that the defendants, as successful parties, were entitled to costs. The court awarded 2B costs to the defendants in relation to the plaintiff's recall applications.

Orders