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 appeal the Court’s decision granting leave to various defendants to file opposition to the plaintiff’s summary judgment application (the Leave to Appeal Judgment).3

[5]    The plaintiff also submitted that if the Leave to Appeal Judgment was recalled, then the Costs Judgment should also be recalled. If the Leave to Appeal Judgment was recalled, the plaintiff’s sought as an alternative to recalling the Cost Judgment, that a stay of the Costs Judgment be granted pending the hearing and determination of the appeal.

[6]    In response to this memorandum, counsel for Messrs Glucina and van Rooijen filed a memorandum dated 9 April 2025 opposing all of the Leave to Appeal Judgment, and the consequential recall of the Costs Judgment.

Legal principles

[7]    The principles governing recall of a judgment are well settled and are set out in Horowhenua County v Nash (No.2).4 Wild CJ said at 633:

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.

3      Moeke v Epairama [2024] NZHC 3119 [29 October 2024].

4      Horowhenua County v Nash (No.2) [1968] NZLR 632.

These have been applied by this Court in Rainbow Corporation Ltd v Ryde Holdings Ltd.5

Plaintiff’s submissions

[8]    The plaintiff, principally relies on the second category set out in Horowhenua County v Nash,6 as grounds for recalling the Leave to Appeal Judgment, namely, that counsel failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance. In this respect Mr Judd KC, for the plaintiff, relies on the Australian Guarantee Corporation7 decision concerning the nature of the summary judgment jurisdiction.

[9]    Mr Judd makes the following submissions in support of recall of the Leave to Appeal Judgment:

(a)The plaintiff’s affidavit supporting the claim against the defendants does what r 12.4(5) requires, as it verifies the allegations in the statement of claim, deposes the plaintiff’s belief that the defendants have no defence based on the position of each of the defendants as set out in his affidavit;

(b)the verified allegations in the statement of claim are that Raukawa Iwi Development Ltd (RIDL) and South Waikato District Council (SWDC) engaged in a conspiracy to defraud the plaintiff by entering into a second sale and purchase agreement in respect of the property in issue to deprive him of his legal interest in the property, and that the defendants were parties to the conspiracy on the grounds appearing in paragraph [7] of the plaintiff’s supporting affidavit;

(c)the Australian Guarantee Corporation case shows that the plaintiff’s verification allegations in the statement of claim stands unchallenged

5      Rainbow Corporation Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493 (CA).

6      Above, n 4.

7      Above, n 2.

unless the defendants prove some evidential foundation for the defences they raise that the verification is patently wrong.

[10]   Mr Judd submits the defendants had not discharged the burden of showing an evidential foundation for the defences they raised or that the plaintiff’s verification in the statement of claim is patently wrong.

[11]   Mr Judd submits that in addition to the plaintiff‘s application verifying the statement of claim, the affidavit also relied on Associate Judge Sargisson’s judgment8 and, whilst acknowledging that her Honour’s findings in that judgment did not decide the facts in the claim against these defendants as opposed to the claim against RIDL and SWDC, they may be relied upon as grounds for the plaintiff’s belief that the defendants were engaged in the conspiracy.

Messrs Glucina’s and van Rooijen’s opposition

[12]   In his memorandum of 9 April 2025 Mr Fisher, for Messrs Glucina and van Rooijen, submits that the application to recall the Leave to Appeal Judgment is an abuse of process because, by counsel for the plaintiff’s memorandum of 29 November 2024, the plaintiff discontinued his application for summary judgment which brought the application to an end, and the earlier interlocutory applications associated with it, to an end.

[13]   Mr Fisher submits that the notice of discontinuance of summary judgment application means that any right the plaintiff may have had to apply to recall or seek leave to appeal any earlier interlocutory decisions associated with the application for summary judgment will have finally been extinguished by the memorandum of discontinuance.

[14]   Mr Fisher submits that the other parties have taken steps and incurred costs in the substantive proceeding in reliance upon the plaintiff’s memorandum of discontinuance having brought the summary judgment application to an end, including

8      Moeke v Raukawa Iwi Developments Ltd [2019] NZHC 3166.

filing statements of defence by the defendants and the filing of the plaintiff’s statement in reply. Accordingly, it is too late for the plaintiff to attempt to reverse this position.

[15]   Mr Fisher further submits that the contents of paragraphs [5] to [18] of counsel for the plaintiff’s memorandum of 4 April 2025 applying to recall the Leave to Appeal Judgment, seek to re-litigate the reasons provided in the Leave to Appeal Judgment and/or amount to a collateral attack on the decision which is also an abuse of the process of the Court.

[16]   Finally, Mr Fisher submits that the reliance by the plaintiff on the Australian Guarantee Corporation decision is misplaced and the decision is not authority for the propositions that it is entirely unnecessary for the plaintiff to adduce any evidence on the claim for summary judgment or that the plaintiff is not required to adduce any evidence in support of allegations of dishonesty and need only verify the allegations in his statement of claim. Accordingly, counsel was not, in the circumstances, bound to refer the Court to the Australian Guarantee Corporation case and the principal ground relied upon by the plaintiff for recall under the tests in the Horowhenua County9 decision is not met.

Result

[17]   I am of the view that the plaintiff’s application to recall the Leave to Appeal Judgment should be dismissed. In my view, the application is an abuse of the Court’s process, as the Leave to Appeal Judgment relates to an appeal of the decision on an interlocutory matter relating to the plaintiff’s summary judgment application which has been discontinued. There can be no utility at all in a potential appeal of the interlocutory decision granting certain defendants leave to oppose the discontinued summary judgment application. Accordingly, the application is an abuse of process. This is dispositive of the plaintiff’s application.

9      Above, n 4.

Orders

[18]I make the following orders:

(a)The plaintiff ‘s application to recall the Leave to Appeal Judgment is dismissed.

(b)The defendants, as the successful parties, are entitled to 2B costs of the plaintiff’s recall applications.

…………………………….. Associate Judge Taylor

Solicitors:

Ken J Patterson, Tauranga, for the Plaintiff

Wotton Kearney (W A Holden/M A Cavanaugh/E Abbot), Auckland, for the First Defendants Clancy Fisher Oxner & Bryant (Paul H Fisher), Tokoroa, for the Second Defendants,

Messrs Glucina and van Rooijen

Parker Cowan (Michael E Parker), Queenstown, for the Fourth Defendant

Counsel:

Gary J Judd KC, Kerikeri, for the Plaintiff

M J Fisher/Kieran Blockley, Erskine Chambers, Auckland, for the Second Defendants, Messrs Glucina and van Rooijen