PGG Wrightson Real Estate Limited v Routhan - [2023] NZCA 405

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA53/2022
[2023] NZCA 405

BETWEEN	PGG WRIGHTSON REAL ESTATE LIMITED Appellant
AND	PHILIP WILLIAM ROUTHAN AND JULIE VERONICA ROUTHAN AS TRUSTEES OF THE KANIERE FAMILY TRUST Respondents

Court:	Gilbert, Mallon and Wylie JJ
Counsel:	L J Taylor KC and M E Parker for Appellant D R Kalderimis, T Nelson and O T H Neas for Respondents
Judgment: (On the papers)	30 August 2023 at 2 pm

JUDGMENT OF THE COURT
[on recall application]

AThe application for recall is declined.
BThe appellant must pay costs to the respondents for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

This judgment responds to an application by the appellant for recall of this Court’s judgment delivered on 24 April 2023 (Substantive judgment).[1]
[1]PGG Wrightson Real Estate Ltd v Routhan [2023] NZCA 123, (2023) 24 NZCPR 97.
The Substantive judgment reduced the damages awarded by the High Court in favour of the respondents from $1,697,600 to $300,000. In both courts, interest on the judgment sum was awarded under the Interest on Money Claims Act 2016 from late 2010 until payment was made in full. The respondents were ordered to pay costs to the appellant on the appeal. The respondents’ entitlement to costs in the High Court was left undisturbed because the outcome on appeal confirmed that judgment had been properly entered in the respondents’ favour, albeit it should have been for a lesser sum.[2]
[2]At [152].
The recall application is advanced on the basis that neither this Court nor the High Court was made aware of three Calderbank offers made by the appellant prior to trial. The appellant contends these offers justify a different costs outcome in the High Court in view of the damages fixed by this Court. The appellant therefore seeks recall of the Substantive judgment, revocation of the order in respect of costs in the High Court, and substitution of an order directing that this issue be remitted to that court for reconsideration in the light of this Court’s judgment.
The respondents strongly oppose the application for recall. For the reasons that follow, we have concluded that the recall application should be declined.
The general rule is that a judgment, once delivered, must stand for better or worse, subject to appeal. A decision to recall a judgment other than under the slip rule (which does not apply here) will only be made in exceptional circumstances:[3]
(a)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;
(b)where counsel have failed to direct the court’s attention to a legislative provision or authoritative decision of plain relevance; or
(c)where for some other very special reason justice requires that the judgment be recalled.
[3]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633 approved in Saxmere Co Ltd v Wool…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZCA 405
Decision Date: 30 August 2023 at 2 pm

CaseChat Overview and Summary

PGG Wrightson Real Estate Limited appealed against a High Court decision awarding damages to Philip and Julie Routhan, who acted as trustees of the Kaniere Family Trust. The High Court had awarded the respondents $1,697,600 in damages, which the Court of Appeal reduced to $300,000. The appeal centred on the respondents' entitlement to costs in the High Court. The appellant argued that the High Court should have considered three settlement offers it made under Calderbank prior to trial. The Court of Appeal dismissed the recall application on the basis that the Calderbank offers would not affect the respondents’ entitlement to costs in the High Court.

The key legal issue before the Court of Appeal was whether the Calderbank offers should have been considered by the High Court when determining the respondents' entitlement to costs. The appellant argued that the Calderbank offers should have led to a different costs outcome in the High Court. The respondents contended that the offers would not affect their entitlement to costs, and that the best offer was made shortly before the trial commenced.

The Court of Appeal found that the appellant's recall application should be declined. The court noted that a considered choice was made not to bring the Calderbank offers to the court's attention before the appeal was determined, and that there was no "failure" by counsel. The court also found that the Calderbank offers would not affect the respondents’ entitlement to costs in the High Court. The offers fell short of the respondents' accrued entitlement to damages, interest, and costs at the relevant times. The court further found that the respondents achieved public vindication of their claims by proceeding to trial and judgment, whereas if they had accepted any of the Calderbank offers, there would have been no admission or finding of liability and the terms of the settlement would have had to be kept confidential.

The Court of Appeal declined the appellant's application for recall. The appellant must pay costs to the respondents on this application on a band B basis and usual disbursements.

Orders