Perry v O'Neills Building Removals Limited

[2017] NZHC 2325

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2017-404-000856 [2017] NZHC 2325

BETWEEN

BRENDA MARGARET PERRY

Plaintiff

AND

OʼNEILLS BUILDING REMOVALS
LIMITED
First Defendant

JEREMY OʼNEILL
Second Defendant

AUBURN DEVELOPMENT LIMITED Third Defendant

Hearing:	25 September 2017
Counsel:	GR Grant for Plaintiff RO Parmenter for First and Second Defendants No appearance for Third Defendant
Judgment:	26 September 2017

JUDGMENT OF DOWNS J (APPLICATION TO RESCIND JUDGMENT)

This judgment was delivered by me on Tuesday, 26 September 2017 at 11 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: Rainey Law, Auckland.

Daniel Overton & Goulding, Auckland. RO Parmenter, Auckland.

PERRY v OʼNEILLS BUILDING REMOVALS LTD [2017] NZHC 2325 [26 September 2017]

[1]      On 30 August 2017 I dismissed Ms Perry’s interlocutory application for relief under s 9 of the Contractual Remedies Act 1979.1    On 4 September 2017 Ms Perry filed an application to rescind the judgment under r 7.49 of the High Court Rules

2016.

[2]      The background remains as set out in my judgment.  I do not repeat it. [3]     Rule 7.49 provides:

7.49  Order may be varied or rescinded if shown to be wrong

(1)   A party affected by an interlocutory order (whether made on a Judge's own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.

(2)   A party may not apply under subclause (1) if the order or decision was made or given—

(a)   with the consent of the parties; or

(b)   on an interlocutory application for summary judgment under rule

12.4 …

(c)   Revoked.

(3)   Notice  of  an  application  under  subclause  (1)  must  be  filed  and served,—

(a)   if it is made by a party who was present or represented when the order was made or the decision given, within 5 working days after the order was made or the decision was given:

(b)   if it is made by a party who was not present and not represented, within 5 working days after receipt by the party of notice of the making of the order or the giving of the decision, and of its terms.

(4)   The application does not operate as a stay unless a Judge so orders.

(5)   Unless a Judge otherwise directs, the application must be heard by the

Judge who made the order or gave the decision. (6)   The Judge may,—

(a)   if satisfied that the order or decision is wrong, vary or rescind the order or decision; or

1      Perry v O’Neills Building Removals Ltd [2017] NZHC 2060.

(b)   on  the Judge's  own  initiative  or  on  the  application of  a  party, transfer the application to the Court of Appeal.

[4]      Applicable principle is not in dispute. The rule is ordinarily invoked when:2

(a)       The original hearing did not involve full argument. (b)           Relevant evidence has been overlooked.

(c)       Circumstances have materially changed since the original hearing. (d)          Some other special circumstances have arisen.

[5]      Conversely, the rule does not provide for what is essentially an appeal in relation to the original decision.  Or as Williams J observed in Howard v Accident Compensation Corporation:3

As to the application under r 7.49, that too must fail. Although review under this rule is an alternative to appeal, it is not an appeal in disguise.  Review will  generally be  appropriate  only where  argument  was  truncated, some relevant point of evidence was overlooked, there has been a material change of circumstances or some other special circumstance has arisen.  It is not an opportunity to re-litigate the same issues. Appeal is the appropriate course in those circumstances.  Here, the applicant does indeed wish to re-litigate my core conclusions.  Rule 7.49 is not a procedure available to her.

[6]      For Ms Perry, Ms Grant contends the application comes within [4](b) and perhaps [4](d).   Ms Perry contends I was obliged but failed to determine the interlocutory application on the basis of the uncontested evidence and pleadings then before me:

(a)      Ms Perry’s evidence was uncontested, and therefore should have been

accepted as correct.

(b)O’Neills Buildings Removals Ltd, more easily O’Neills, had not—and still has not—filed a statement of defence in response to the claim

2      See, for example, Crequer v Chief Executive of the Ministry of Social Development [2012] NZHC 3620 at [3]; Crequer v Chief Executive of the Ministry of Social Development [2014] NZCA 284; and New Zealand Mint v Greys Avenue Investments [2016] NZHC 2165 at [20].

3      Howard v Accident Compensation Corporation [2013] NZHC 1004 at [4].

based on cancellation of the contract.   Reliance on O’Neills earlier

statement of defence vis-à-vis cancellation therefore constituted error.

(c)      O’Neill’s notice of opposition to the interlocutory application did not raise any issue with the validity of cancellation, and in fact relied on cancellation to oppose some of the orders sought.

(d)I wrongly placed reliance on Mr Parmenter’s submission cancellation would be in issue, for, Mr Parmenter did not hold instructions from O’Neills in connection with this issue.   In any event, Mr Parmenter was  not  signalling  a  general  contest  to  validity  of  cancellation. Rather, contest is to be confined to timeliness; not weather tightness.

(e)       As to weather tightness, the evidence is clear O’Neills has no defence

and could not contest cancellation.

[7]      For  O’Neills,  Mr  Parmenter  responsibly  accepted  his  submission  at  the original hearing had been confined to timeliness and was not intended to convey a more general contest about validity of cancellation.  However, Mr Parmenter resisted the application on the basis it amounted to an appeal.

[8]      Ms Grant’s submissions may be correct.   Or not.   However, whatever the position, they go appreciably beyond a contention relevant evidence has been overlooked, or that special circumstances exist.  Rather, the submissions reduce to the proposition my judgment exhibits reversible error, through misapprehension of both fact and law.  Again, that may be correct.  Or not.  But that is not for me. The application is dismissed on the basis it seeks, in substance, an appeal.

[9]      Costs remain reserved.

……………………………..

Downs J