Paterson v Lipionka & Company Investments Limited

[2021] NZSC 191

191

IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

 SC 101/2021
 [2021] NZSC 191

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

Court:	William Young, Glazebrook and O’Regan JJ
Counsel:	Applicant in person M G Colson QC and S J Leslie for Respondents
Judgment:	23 December 2021

JUDGMENT OF THE COURT

A The application for recall of this Court’s judgment of 3 December 2021 (Paterson v Lepionka & Co Investments Ltd [2021] NZSC 171) is allowed only to make the change identified at [2] below.

BThe [2021] NZSC 171 judgment is reissued with this change.

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REASONS

1. In seeking the recall of our judgment of 3 December 2021 dismissing his application for leave to appeal,[1] the applicant asserts that we did not address issues properly before us: first, whether a bank cheque had been delivered to the first respondent, Lepionka & Co Investments Ltd (LCIL); and second, what is said to be LCIL’s “pre-planned scheme to use a transfer under the Land Transfer Act for the designed purpose of cheating those with known interests” in the property affected.  As to this we observe:

   (a)The delivery issue has been determined in other proceedings adversely to the applicant and the argument which he wished to advance on appeal was referred to, albeit in general terms, at [9] of this Court’s judgment dismissing leave as an abuse of process.  The earlier proceedings in which the issue had been dealt with were identified.

   (b)Mr Paterson only sought leave to appeal against two parts of the Court of Appeal decision, those dealing with the malicious prosecution claim and the bankruptcy adjudication.  The alleged “pre-planned scheme” issue was dealt with by the Court of Appeal in other parts of its judgment and was thus not the subject of his notice of application for leave to appeal and was accordingly not dealt with in the leave judgment.

   [1]Paterson v Lepionka & Co Investments Ltd [2021] NZSC 171.

2. The applicant also identifies a number of what are said to be misstatements.  In relation to one of them, a comment made at [6(a)] of the leave judgment, there is an apparent error.  This has been corrected in a reissued judgment which is being released simultaneously with this judgment.[2]  It was of no practical moment in relation to the disposition of the application for leave to appeal.  We do not accept that the other alleged misstatements were in error.

   [2]The former wording of the comment at [6(a)] was: “They are predicated on GLW having taken title to the Hawke’s Bay land as trustee for the trust but otherwise cover the same ground as the first mortgagee proceedings.”  This is replaced by the following sentence in the reissued judgment: “These proceedings largely cover the same ground as the first mortgagee proceedings.”

3. So, save that the leave judgment is to be reissued with a revised [6(a)], the application for recall is dismissed.

Solicitors:
Bell Gully, Wellington for Respondents