Premier Events Group Limited v Beattie no.3 HC Auckland CIV 2010-404-003178

[2011] NZHC 1060

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-003178

BETWEEN  PREMIER EVENTS GROUP LIMITED Plaintiff

ANDMALCOLM JAMES BEATTIE First Defendant

ANDANTHONY JOSEPH REGAN Second Defendant

ANDCT NZ LIMITED (PREVIOUSLY KNOWN AS CARTAN GLOBAL LIMITED)

Third Defendant

ANDPARNELL PARTNERS GROUP LIMITED Fourth Defendant

ANDSPORTS HOSPITALITY MANAGEMENT LIMITED Fifth Defendant

ANDPARNELL PARTNERS GROUP (NZ) LIMITED

Sixth Defendant

ANDCARTAN GLOBAL LLP Seventh Defendant

ANDCARTAN TOURS INC Eighth Defendant

ANDSPORTSMARK MANAGEMENT GROUP LIMITED

Ninth Defendant

CIV 2011-404-000474

AND BETWEEN            ANTHONY JOSEPH REGAN First Plaintiff

PREMIER EVENTS GROUP LIMITED V MJ BEATTIE & ORS HC AK CIV 2010-404-003178 30 September

2011

ANDANTHONY JOSEPH REGAN JENNIFER ANNE REGAN AS TRUSTEES OF THE PICCADILLY TRUST

Second Plaintiffs

ANDROBERT GILL First Defendant

ANDPREMIER EVENTS GROUP LIMITED Second Defendant

ANDBA PARTNERS LIMITED (IN RECEIVERSHIP AND LIQUIDATION) Third Defendant

ANDDIGITAL PARTNERS LIMITED (IN RECEIVERSHIP AND LIQUIDATION) Fourth Defendant

ANDCPG YORK LIMITED Fifth Defendant

ANDBRAND ADVANTAGE MEASUREMENT AND CONSULTING LIMITED

Sixth Defendant

ANDDIGITAL PARTNERS (NZ) LIMITED Seventh Defendant

Hearing:         30 September 2011

Counsel:         M Pascariu for the Plaintiff in the First Proceeding

J Eichelbaum for the First to Ninth Defendants in the First Proceeding
J Eichelbaum for the Plaintiffs in the Second Proceeding

M Pascariu for the First to Seventh Defendants in the Second Proceeding (other than those defendants who are in receivership) C Curran-Tietjens for the Receivers/Liquidators of the Third and Fourth Defendants in the Second Proceeding

Judgment:      30 September 2011

ORAL JUDGMENT OF WYLIE J

[1]      On 16 August 2011, I issued a reserved judgment in relation to various outstanding interlocutory applications in these proceedings.

[2]      On   17  August   2011,   Mr Eichelbaum,   acting   for   the   defendants   in proceedings CIV 2010-404-003178 and for the plaintiffs in proceedings CIV 2011-

404-000474 filed an application seeking re-call of the judgment.  The application brought to my attention the fact that undertakings as to damages had been filed after the hearing had been concluded, but before I issued my judgment.  The application also referred to [53(e)] in the judgment and asserted that an example I gave in that paragraph  was  incorrect,  because  the  15  per  cent  shareholding  held  by  the Piccadilly Trust in Brand Advantage Measurement and Consulting Limited had been disclosed in the pleadings.

[3]      I issued a corrigendum to the judgment on 18 August 2011 recording that the undertakings had been filed subsequent to the hearing, that I had not been aware of them when I issued my judgment, but the fact that they had been given did not alter the result of my judgment.  In regard to the matters in [53(e)], I accepted that Mr Regan was correct and that his family trust’s 15 per cent interest in Brand Advantage Measurement and Consulting Limited had been disclosed in the proceedings, and I indicated that [53(e)] should be amended by deleting the last two sentences.

[4]      This corrigendum notwithstanding, an amended application for re-call was filed on 19 August 2011.  It referred to the fact that the undertakings as to damages had been given and also to [53(e)], as well as to various other matters where it was asserted that my judgment was incorrect.

[5]      I put in place a timetable to deal with the application and the matter has come before me today.

[6]      Mr Eichelbaum, in his oral submissions, refined his application for re-call:

(a)      He sought removal of the second and third sentences in [53(e)].  The first sentence in that paragraph, and the second and third sentences, read as follows:

Finally, pursuant to r 32.2(3), an applicant for a freezing order must fully and frankly disclose to the Court all material  facts.    I  am  not  satisfied  that  has  been  done. Mr Regan   has   made   a   number   of   assertions   in   his affidavits, but it does not seem to me that he has made any conscientious  attempt  to  fully  and  fairly  disclose  all material facts.

(b)      He asserted that [20] in my judgment was incorrect.

[7]      In the course of oral discussion with Mr Eichelbaum, he withdrew his application in respect of [20] and accepted that Mr Regan had not responded to Mr Gill’s affidavit dated 23 June 2011 and, that as a consequence, [20] in my judgment did not require re-call.

[8]      Mr Eichelbaum nevertheless maintained his objection to the second and third sentences of [53(e)] and sought that they should be deleted.  He submitted that they were unfair to Mr Regan.  He referred me to a judgment of Toogood J dated

24 August  20111   and  suggested  that  Toogood  J  had  been  influenced  by  my

comments in his judgment.  Following further discussion with Mr Eichelbaum, he acknowledged that, in fact, Toogood J had been referring to an earlier judgment given by me in this matter dated 24 June 2011, that he had reached a similar conclusion in relation to affidavits filed in the matter with which he was dealing, and that he had adopted comments I made in my judgment of 24 June 2011.

[9]      The  jurisdiction  to  re-call  a  judgment  is  contained  in  r  11.9  of  the

High Court Rules.

1      Wagner v Gill & Ors HC Auckland CIV 2011-404-003590, 24 August 2011.

[10]     The re-call of a judgment is a serious step, to be taken only in reasonably well identified and limited situations.  The leading statement in New Zealand is that of Wild CJ in Horowhenua County v Nash (No 2).2   His Honour stated as follows:

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.

[11]     That statement has been applied by the Supreme Court in Saxmere Company Limited v Wool Board Disestablishment Company Limited3  and by the Court of Appeal in several subsequent cases, including notably, Erwood v Glasgow Harley.4

[12]     Mr Eichelbaum submitted that his application for re-call came within the third category – that is, that there are ―very  special reasons‖  such that justice requires that the judgment be re-called.

[13]     Mr  Pascariu  appearing  for  the  plaintiffs  in  proceedings  CIV  2010-404-

003178 and for the defendants in proceedings CIV 2011-404-000474 submitted that the judgment should stand, that the corrigendum had appropriately addressed the issues raised by the defendants’ application, and that the request for re-call cannot come within the principles outlined in Horowhenua County v Nash (No 2).

[14]     Having considered the matter, I agree with Mr Pascariu.

[15]     Paragraph 53(e) reflects the view I formed after reading all of the affidavits filed by Mr Regan.  The example I gave cannot stand and I have corrected that in the corrigendum which I issued on 18 August 2011.  As a result, there is, in my

view, no very special reason requiring that the judgment should be re-called.

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

3      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2011] NZSC 12.

4      Erwood v Glasgow Harley [2008] NZCA 572.

[16]     The comments made in [53(e)] were part of my reasoning for declining a freezing order pursuant to an application dated 17 June 2011.  The result and my reasons can be tested in the Court of Appeal.   If that Court considers that my reasoning was wrong, the Court of Appeal can of course overturn my judgment.

[17]     The application for re-call is declined.

[18]     The plaintiffs in proceedings CIV 2010-404-003178 and the defendants in proceedings CIV 2011-404-000474 are entitled to costs.  Costs are fixed on a 2B basis.   I anticipate that counsel will be able to agree the same.   If there is any dispute, the same is to be referred to me.

[19]   The Registrar may release my judgment of 16 August 2011 and my corrigendum of 18 August 2011 for publication.

Wylie J

Distribution:

Z Kennedy:  [email protected]

M Pascariu: miha[email protected]

J Eichelbaum:  [email protected]