Peterson v Mills

[2021] NZCA 534

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA35/2021
 [2021] NZCA 534

BETWEEN	CARL JAMES PETERSON First Applicant LYNETTE JOY MILLS Second Applicant PETERSON/MILLS PARTNERSHIP Third Applicant
AND	GRAHAM HOWARD MILLS Respondent

Court:	French and Courtney JJ
Counsel:	Applicants in Person J R Sparrow for Respondent
Judgment: (On the papers)	14 October 2021 at 9 am

JUDGMENT OF THE COURT

AThe application for recall of this Court’s judgment of 13 May 2021 (Peterson v Mills [2021] NZCA 179) is declined.

BThe applicants must pay the respondent one set of costs for a standard application on a band A basis with usual disbursements.

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REASONS OF THE COURT

(Given by French J)

1. On 13 May 2021 we delivered a judgment declining the applicants’ application for leave to appeal.[1]  The judgment was sealed on 29 June 2021.

   [1]Peterson v Mills [2021] NZCA 179.

2. On 22 July 2021, after trying unsuccessfully to appeal our decision in the Supreme Court and filing applications in the District Court, the applicants filed an application in this Court for recall of the judgment.  The application is opposed.

3. It is well established that in exceptional circumstances a sealed judgment can be recalled.[2]  However, we are satisfied that even if our judgment had not been sealed, none of the numerous grounds advanced in support of the application would warrant recall.[3]  They are essentially a thinly disguised attempt to re-litigate matters that have already been the subject of adjudication before and/or were already taken into account by us.

   [2]Wagg v Squally Cove Forestry Partnership [2013] NZCA 612 at [4].

   [3]Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

4. The only “new” matter sought to be raised is the belated discovery of what is said to be a Calderbank offer of settlement made by the respondent.  However the written offer exhibited to the applicant’s affidavit is not a Calderbank letter but a privileged communication which should not have been put before the Court.

5. The application for recall is accordingly declined.

6. The applicants are ordered to pay the respondent one set of costs for a standard application on a band A basis with usual disbursements.

Solicitors:
Holland Beckett Law, Tauranga for Respondent