Paterson v Lepionka & Company Investments Limited

[2021] NZCA 537

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA521/2020
 [2021] NZCA 537

BETWEEN	GARTH BOWKETT PATERSON Appellant
AND	LEPIONKA & COMPANY INVESTMENTS LIMITED First Respondent
AND	STEFAN JOZEF JOHN LEPIONKA, JOE DUNCAN AND GREGORY BERNARD HORTON AS TRUSTEES OF THE LEPIONKA BUSINESS TRUST Second Respondents
AND	LEPIONKA & COMPANY LIMITED Third Respondent
AND	STEFAN JOZEF JOHN LEPIONKA AND NIGEL WARREN HUGHES AS TRUSTEES OF THE SJ LEPIONKA FAMILY TRUST Fourth Respondents
AND	STEFAN JOZEF JOHN LEPIONKA Fifth Respondent

Counsel:	Appellant in Person M G Colson QC and S J Leslie for Respondents
Judgment: (On the papers)	15 October 2021 at 10 am

JUDGMENT OF COURTNEY J
(Application for recall)

The application for recall is declined. 

____________________________________________________________________

REASONS

1. In a decision delivered on 28 September 2021 I declined Mr Paterson’s review of a Deputy Registrar’s decision refusing to dispense with the requirement for security for costs in his current appeal.[1]  Mr Paterson has applied to have that judgment recalled. 

   [1]Paterson v Lepionka & Co Investments Ltd [2021] NZCA 494.

2. The power to recall a judgment is conferred by r 8A of the Court of Appeal (Civil) Rules 2005.  The principles on which the power might be exercised are those described in Erwood v Maxted.[2]  In that case the Court reiterated that the grounds on which a judgment may be recalled are strictly limited to those described in Horowhenua County v Nash (No 2):[3]

   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.

   [2]Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23].

   [3]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

3. Mr Paterson asserts that there are errors of fact in the judgment relating to the basis of the claim that is the subject of his appeal. 

4. Assertion as to errors of fact in a judgment of the kind sought to be recalled does not provide a ground for recall.  It does not fall within any of the categories recognised for recall and there is, in the circumstances, no special reason to justify a recall.  The judgment concerned the refusal of the Deputy Registrar to dispense with security on the basis that Mr Paterson had not demonstrated impecuniosity.  The asserted errors of fact are entirely unrelated to that issue. 

5. The application for recall is declined.

Solicitors:
Bell Gully, Wellington for Respondents