Premier Legal Finance Limited v Morrison Kent

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-001620

[2022] NZHC 2709

BETWEEN PREMIER LEGAL FINANCE LIMITED PARTNERSHIP
Plaintiff

AND

MORRISON KENT

Defendant

Hearing: On the papers

Counsel:

D W Grove for Plaintiff

A L Holloway and M A Karlsen for Defendant

Judgment:

19 October 2022

JUDGMENT OF ASSOCIATE JUDGE P J ANDREW

[Recall]

This judgment was delivered by Associate Judge Andrew on 19 October 2022 at 1.00 pm
pursuant to r 11.5 of the High Court Rules Registrar / Deputy Registrar

Date…………………………….

PREMIER LEGAL FINANCE LIMITED PARTNERSHIP v MORRISON KENT [2022] NZHC 2709 [19
October 2022]

Introduction

[1] In my judgment of 26 July 2022,1 I dismissed the defendant’s application for strike out and/or summary judgment.

[2] On 11 August 2022, the plaintiff discontinued the proceedings. The plaintiff, with the consent of the defendant, now seeks an order that I recall my judgment.

[3] Counsel for the plaintiff advises that earlier in 2022 settlement discussions took place that resulted in a settlement agreement, including a resolution of various matters between the plaintiff and the Official Assignee. Counsel for the plaintiff responsibly accepts that “inexcusably and mistakenly” he did not refer to the relevant correspondence and the settlement agreement that was signed. He and the plaintiff had proceeded on the mistaken belief that the terms of the settlement did not preclude the plaintiff pursuing this claim, as opposed to Mr Ensom, the bankrupt, personally pursuing the claim.

[4] In its memorandum of 7 September 2022, the defendant consents to the recalling of the judgment. The only outstanding issue is now costs.

Decision

[5] I am satisfied, for the reasons advanced by counsel for the plaintiff, that I should make an order recalling my judgment of 26 July 2022.2 It is not disputed that counsel failed to direct me to a settlement agreement of plain relevance and application and that in the circumstances there is a very special reason why justice requires that my judgment be recalled.3 I accordingly recall my judgment.

[6] As to costs, if the parties cannot resolve costs, written submissions are to be filed and served in accordance with the following timetable:

(a)The defendant is to file submissions by 1 November 2022;

1      Premier Legal Finance Limited Partnership v Morrison Kent [2022] NZHC 1798.
2      High Court Rules 2016, r 11.9.
3      Horowhenua County v Nash (No. 2) [1968] NZLR 632 at 633.

(b)The plaintiff is to file submissions by 15 November 2022;

(c)The defendant is to file any submissions in reply by 22 November 2022;

(d)The Court will then determine the issue on the papers.

Associate Judge P J Andrew

CaseChat Overview and Summary

In the High Court of New Zealand, Auckland Registry, the plaintiff, Premier Legal Finance Limited Partnership, had initiated proceedings against the defendant, Morrison Kent. The nature of the dispute was initially related to an application for strike out and/or summary judgment, which the court dismissed on 26 July 2022. Following the dismissal, the plaintiff discontinued the proceedings and sought an order to recall the judgment, given that settlement discussions had occurred earlier in 2022, culminating in a signed settlement agreement. The plaintiff's counsel had mistakenly failed to refer to this agreement, believing it did not preclude the claim. The defendant consented to the recall of the judgment, and the only remaining issue was the costs.

The legal issues the court had to decide were whether there was a sufficient reason to recall the earlier judgment and the appropriate costs order, given the settlement discussions and the oversight by the plaintiff's counsel. The court noted the failure of counsel to draw attention to the settlement agreement and acknowledged the special circumstances justifying the recall of the judgment. The court determined that justice required the judgment to be recalled, and it did so accordingly. The unresolved matter was the allocation of costs, for which the parties were required to file written submissions if they could not resolve the issue themselves.

In its judgment, the court granted the plaintiff's request to recall the earlier judgment of 26 July 2022, acknowledging the special circumstances and the counsel's oversight. The court established a timetable for the parties to file written submissions on costs if they could not reach an agreement. The defendant had to file submissions by 1 November 2022, the plaintiff by 15 November 2022, and the defendant could file any reply submissions by 22 November 2022. The court would then determine the issue of costs on the papers.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established