Premier Legal Finance Limited v Morrison Kent

[2022] NZHC 2709

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