Prestige Motors Limited v My Trustee Company (Nikolas and Petra) Limited

[2021] NZHC 895

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-80

[2021] NZHC 895

IN THE MATTER

of Articles 9, 17A and 17B of Schedule 1 to the Arbitration Act 1996 and s 253 of the Property Law Act 2007

BETWEEN

PRESTIGE MOTORS LIMITED

Applicant

AND

MY TRUSTEE COMPANY (NIKOLAS AND PETRA) LIMITED

Respondent

Hearing:	On the papers
Appearances:	J Long and G Morrison for the Applicant D Purusram for the Respondent
Judgment:	27 April 2021

JUDGMENT (NO 2) OF GORDON J

This judgment was delivered by me on 27 April 2021 at 1 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:           DK Law, Auckland

Victorian Lawyers, Papakura, Auckland

Counsel:            J Long, Auckland

G Morrison, Auckland

PRESTIGE MOTORS LTD v MY TRUSTEE COMPANY LTD [2021] NZHC 895 [27 April 2021]

Introduction

[1]    This is an application by the respondent, My Trustee Company (Nikolas and Petra) Limited (MTC), to correct the judgment I gave in favour of the applicant,

Prestige Motors Limited (Prestige) on 22 February 2021.1

[2]This judgment is given on the papers with the consent of both parties.

Background

[3]    Prestige ran its automotive services and repair business from premises at 14-16 Dryden Place, Mt Wellington (the premises) until it was locked out from the premises by the landlord, MTC. Prestige claimed MTC had unlawfully purported to terminate its lease (the lease), evict it from the premises, and deny it access to the premises on a number of occasions. Prestige claimed it had suffered considerable losses because of MTC’s actions as it was unable to conduct its business. As a consequence, Prestige applied for urgent interim measures and relief regarding the tenancy.

[4]    The lease contains an arbitration clause. Pending any arbitration, Prestige sought interim measures under arts 9, 17, 17A and 17B of Schedule 1 of the Arbitration Act 1996. Prestige sought those measures to restore the status quo under the lease and to prevent MTC from taking action that was likely to cause harm or prejudice to the arbitral proceedings.

[5]    Article 9 of Schedule 1 of the Arbitration Act empowers the Court to grant interim measures before or during an arbitration. The Court is restricted to the same powers as those of the arbitral tribunal (under arts 17A and 17B). The Court’s jurisdiction is therefore auxiliary to and complements and facilitates, the arbitral process. The ordinary jurisdiction for interim injunctions does not apply.2

[6]    Prestige’s case was that MTC’s cancellation of the lease was unlawful because the notice given by MTC did not comply with the code for cancellation of leases under

1      Prestige Motors Ltd v My Trustee Co Ltd [2021] NZHC 237.

2      Safe Kids in Daily Supervision Ltd v McNeill [2012] 1 NZLR 714 (HC) at [18].

the Property Law Act 2007 (PLA). Applying the criteria in art 17B(1)(a)–(c), I accepted that Prestige had an arguable case that the PLA notice was not valid, and I considered that there was a reasonable possibility that Prestige would succeed on the merits. Further applying the test, I accepted that Prestige was likely to suffer harm that would not be adequately remedied by an award of damages if the application were not granted and that the harm that would be suffered by Prestige if the application were not granted substantially outweighed any harm that was likely to result to MTC if I were to grant the measures sought.

[7]Prestige therefore succeeded on its application.

[8]    The orders I  made  were  as  sought  in  Prestige’s  amended  application  of 4 February 2021 and included a direction that MTC (including its directors, agents and contractors and specifically Stephen Penney, one of two directors of MTC):3

[65](f) … reinstate all property moved from or around the premises by MTC, including but not limited to signage, the emergency power generator and televisions belonging to Prestige.

[9]    On 18 March 2021, Mr Purusram, on behalf of MTC, filed an “application” by way of memorandum seeking an order correcting my judgment under r 11.10(1)(a) or r 11.10(b) of the High Court Rules 2016 (HCR), or alternatively an order varying my order under r 7.49 of the HCR. The memorandum also referred to s 27(1) of the New Zealand Bill of Rights Act 1990 (NZBORA). In the memorandum, Mr Purusram said he was instructed that MTC denied liability about “having misplaced of [sic] the TV/generator” and that the directors of MTC felt offended by the wording of [65](f).

[10]   MTC sought correction of [65](f) by the deletion of the words “the emergency power generator and televisions” from that paragraph. Mr Purusram did not provide an explanation for the delay in filing the “application”. Prestige filed a memorandum in opposition on 23 March 2021 and Mr Purusram filed a reply on 24 March 2021.

[11]   On 31 March 2021, I issued a minute in relation to the “application” under     r 7.49. I noted that this was neither a formal application nor were there reasons

3      Prestige Motors Ltd v My Trustee Co Ltd above n 1, at [65](f).

provided for the memorandum being out of time. I granted an indulgence to MTC so that Mr Purusram might file a formal application in place of his memorandum and an explanation as to why MTC applied out of time. I made it clear that in giving MTC the opportunity to regularise its filing, that was not an indication that the application would be granted.

[12]   I also gave MTC the opportunity to file and serve an affidavit from Mr Penney as to his position on the removal of the generator (Mr Penney had referred to the televisions in his affidavit for the hearing but not the generator). I made it clear that in giving that opportunity the Court had not determined whether or not it would in fact admit the evidence.

[13]   MTC filed an application which is recorded in the Court’s system as being received the day after it was directed to be filed along with an affidavit of Mr Penney sworn 7 April 2021 also filed one day after the directed time. There was no explanation for the delay in filing. The application did not refer to any specific rules but generally relied on parts 7 and 11 of the HCR and s 27 of NZBORA.

[14]   In his affidavit dated 7 April 2021, Mr Penney denies all knowledge of the power generator and denies that he admitted moving the generator when he appeared before the Duty Judge on 3 February 2021 (as alleged in the affidavit evidence for Prestige for the hearing).

[15]   MTC subsequently filed an amended application relying on rr 1.6, 7.49, 11.9 and 11.10 of the HCR along with s 27 of BORA and art 17H(a) of Schedule 1 of the Arbitration Act.

Evidence

[16]   In his affidavits, Uditha Pallewatte, the director of Prestige, said that the power generator belonging to Prestige had been removed from the premises. Other property, including eight televisions packed in wooden pallet boxes had also been removed. The application was called before the Duty Judge on 3 February 2021. Counsel appeared for Prestige and Mr Pallewatte and his family attended Court. Mr Penney and his co- director appeared for MTC with the leave of the Court. Prestige’s position in its

affidavit evidence was that at the call on 3 February 2021, Mr Penney admitted to the Court that he had removed property belonging to Prestige from the premises. Prestige’s position is that Mr Penney specifically admitted he had removed Prestige’s signage and power generator.

[17]   The Duty Judge made interim orders including that “… nothing shall be altered or removed from the premises pending further order of this Court”.4

[18]   Prestige recorded what it says were Mr Penney’s admissions, in correspondence to MTC dated 4 February 2021 and subsequently in Mr Pallewatte’s third affidavit of 15 February 2021. Prestige also filed an amended originating application dated 4 February 2021 to take account of what it says were MTC’s admissions before the Duty Judge to require the reinstatement of its removed property and signage. That order sought became the order at [65](f) of my judgment referred to in [8] above.

[19]   Prestige followed up in relation to its 4 February 2021 letter, but did not receive a response. Nor did MTC address the issue of the removed power generator in its notice of opposition or in Mr Penney’s affidavit dated 12 February 2021. Mr Penney did say, in respect of the paragraphs in which Mr Pallewatte referred to the televisions packed in wooden pallet boxes that, “I am not aware of these and therefore deny same”. MTC’s written submissions did not respond to Prestige’s submissions relating to the power generator or any other removal of property.

[20]   The orders in my judgment were sealed by Prestige on the date of judgment, 22 February 2021.

Rule 11.10 of the HCR

[21]Mr Purusram refers to the part of my judgment where I said:

[6] … Prestige and MTC disagree on most factual matters. Decisions on those disputed facts will be for any arbitration. It is not possible to resolve those issues on untested affidavit evidence. And, in any event, it is not necessary to do so in order to determine the application.

4      Minute of Paul Davison J at [3](a).

[22]   He goes on to submit that that wording makes it clear that I did not intend to make any order about the televisions and the generator specifically and the inclusion of those items in the order are by error/omission or mistake, or through oversight and need to be deleted accordingly. He says that the orders were made on an urgent basis to enable Prestige to have peaceable entry to the premises. The issue regarding the televisions and generator is not an urgent issue. He further adds that there is no evidence of ownership or any proprietary interest in the televisions and generator. Finally, he submits that the deletion of the two items will cause no prejudice to Prestige as the paragraph will still direct MTC “to reinstate all property moved from or around the premises by MTC”. The deletion of those two items will be no bar to Prestige pursuing the issue in the course of arbitration.

[23]Rule 11.10 of the HCR provides:

11.10   Correction of accidental slip or omission

(1)A judgment or order may be corrected by the court or the Registrar who made it, if it—

(a)contains a clerical mistake or an error arising from an accidental slip or omission, whether or not made by an officer of the court; or

(b)is drawn up so that it does not express what was decided and intended.

(2)The correction may be made by the court or the Registrar, as the case may be,—

(a)on its or his or her own initiative; or

(b)on an interlocutory application.

[24]   This rule allows the Court to correct a judgment where there is an error arising from an accidental slip or omission or where it is drawn up so that it does not express what was decided and intended.

[25]   Rule 11.10, often called the slip rule, reflects the Court’s inherent jurisdiction to correct errors as a result of a slip or accidental omission. It is a jurisdiction used

sparingly and is aimed at inadvertence.5 The rule may not be invoked to improve on or to permit second thoughts about the judgment obtained,6 to amend an order to a more convenient form,7 or vary an order in a fundamental way.8

[26]   The jurisdiction under r 11.10 will not be invoked where determination of the question at hand  would  require  the calling  of further evidence.9  I therefore  put  Mr Penney’s affidavit of 7 April 2021 aside in my assessment of the application under r 11.10.

[27]   MTC does not suggest that the judgment does not accurately record what was decided. It does suggest by reference to [6] of my judgment, that the judgment does not accurately record what was intended. In response to that submission I note first, in relation to Prestige’s case that Mr Penney removed the power generator from the premises, this was the subject of evidence from Mr Pallewatte that was undisputed until Mr Penney’s affidavit of 7 April 2021. I have already said I put that affidavit to one side for the purpose of this assessment.

[28]   In relation to the televisions, Prestige’s position is that it took Mr Penney’s alleged admission at the 3 February 2021 hearing to include the removal of all property (including the televisions) and proceeded on the basis that Mr Penny removed the power generator and televisions. MTC amended its original application to include the reinstatement of all property, including the power generator and televisions. That was not addressed in MTC’s notice of opposition.

[29]   I acknowledge that there was a bare denial of knowledge of the televisions by Mr Penney in his 12 February 2021 affidavit, but MTC did not address this point in written submissions. Even though the denial was a bare denial, I accept that MTC might say there was an evidential dispute. But I do not consider this is a matter that can be “corrected” under r 11.10. There was no error arising from an accidental slip

5      See Andrew Beck and others (eds) McGechan on Procedure (online looseleaf ed, Thomson Reuters) at [HR11.10.01]; and Bank of New Zealand v Mulholland (1991) 4 PRNZ 299 (HC).

6      See Bhullar v Auckland Co-operative Taxi Society Ltd (No 2) [2018] NZHC 1375 at [3] citing Broadview Investments Co Pty Ltd v Corporate Interiors (NZ) Ltd  HC Wellington CP123/92,  12 August 1998 in relation to r 11.10(b).

7      Bank of New Zealand v Mulholland, above n 5 at [302].

8      See for example R v Cripps, ex p Muldoon [1983] 3 All ER 72.

9      Brickell v Attorney-General (2002) 16 PRNZ 557 (HC) at [6].

or omission.10 Nor is the judgment drawn up so that it does not express what was decided and intended under r 11.10(1)(b). That rule more naturally refers to the formal order drawn up following a judgment.11

Rule 11.9 of the HCR

[30]Rule 11.9 provides:

11.9     Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[31]   As is apparent, the rule is not available where, as here, final orders have been sealed. The leading statement in New Zealand is that of Wild CJ in Horowhenua County v Nash (No 2):12

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.

(emphasis added)

[32]   Although the application is not made in reliance on the Court’s inherent jurisdiction, Mr Purusram nevertheless refers in his submissions to the ability of the Court to recall a judgment in exceptional circumstances, including situations where a slip or omission may be rectified, and where a supplementary judgment may be given to cover a matter not previously dealt with.13 He submits that there are exceptional circumstances here as there has been an omission or slip and that a supplementary judgment must be delivered to rectify the references to the televisions and the generator.

10     High Court Rules 2016, r 11.10(1)(a).

11     Bhullar v Auckland Co-operative Taxi Society Ltd (No 2), above n 6 at [3].

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

13     Herron v Wallace (2016) 23 PRNZ 620 (HC) at [33].

[33]   Acknowledging the decision in Herron v Wallace, Prestige accepts that the Court retains an inherent power to recall or rescind a judgment after it has been sealed.14 But it says there are no exceptional circumstances here.

[34]   In Herron v Wallace, Faire J was required to consider whether the Court has jurisdiction to recall or rescind a perfected judgment. After a review of cases which considered this issue,15 the Judge set out the principles which he considered could be extracted from those cases, as follows:16

…

(a)The starting point must be the finality of litigation which reflects the public interest in there being an end to litigation, and the private interests of the parties in not being subject to vexatious litigation; however

(b)absolute finality of litigation is unsafe. There are circumstances in which the Court may invoke its inherent jurisdiction. There are some established categories of exception to the finality of litigation:

(i)a slip or omission may be rectified;

(ii)a judgment may be set aside, usually by separate action, where it was obtained by fraud;

(iii)a case may be reopened where fresh evidence not previously available has come to light which is material to the outcome of the case;

(iv)a judgment obtained by consent may be reopened; and

(v)a supplementary judgment may be given to cover a matter not previously dealt with.

[35]   I accept Prestige’s submission that there are no exceptional circumstances: there was no slip or omission; the judgment was not obtained by fraud; the new affidavit evidence of Mr Penney now asserting he did not acknowledge removing the generator does not qualify as fresh evidence; the judgment was not obtained by consent; and the issue now raised is not a matter not previously dealt with.

14     At [4(d)].

15     At [17] to [32].

16 At [33].

[36]   MTC’s application cannot succeed under r 11.9 as the judgment has been sealed. Nor does it succeed in reliance on the Court’s inherent jurisdiction for the reasons given.

Rule 7.49 of the HCR

[37]   MTC’s amended application introduces new grounds, namely art 17H(a) of Schedule 1 of the Arbitration Act and r 1.6 of the HCR. However, these new grounds are only advanced to support the application under r 7.49. They are not advanced as grounds in their own right.

[38]   Mr Purusram submits that the originating application was dealt with as an interim application pending determination of the main disputes by way of arbitration or other proceedings. He notes that art 17H(a) to Schedule 1 of the Arbitration Act provides that if the arbitral tribunal grants or issues an interim measure or a preliminary order, it may modify, suspend, or cancel the measure or order on the application of a party. He submits the Court has an ability to modify the judgment under art 17H(a).

[39]   He also refers to r 1.6 submitting that the HCR appear silent on this issue. Rule 1.6 provides:

1.6      Cases not provided for

(1)If any case arises for which no form of procedure is prescribed by any Act or rules or regulations or by these rules, the court must dispose of the case as nearly as may be practicable in accordance with the provisions of these rules affecting any similar case.

(2)If there are no such rules, it must be disposed of in the manner that the court thinks is best calculated to promote the objective of these rules (see rule 1.2).

[40]   Mr Purusram refers to Prestige’s reliance on the decision of Mike Pero (New Zealand) Ltd v Krishna17 and submits it should be distinguished as the Court did not refer to art 17H(a) in that case.

17     Mike Pero (New Zealand) Ltd v Krishna [2016] NZHC 1255, (2016) 14 NZELR 244.

[41]   Mr Purusram also relies on three cases, two of which refer to the Court’s inherent jurisdiction to modify or revoke procedural orders, which are of continuing effect at any time before a substantive judgment finally determines the parties’ rights,18 and a third where the Court considered it had jurisdiction to vary or rescind a non- publication  order,   which  was  an  order  of  continuing  effect.19   In  summary,    Mr Purusram submits it is open to interpretation as to whether the Court may apply   r 7.49 coupled with r 1.6 and art 17H(a) of Schedule 1 of the Arbitration Act, for the purposes of establishing jurisdiction under r 7.49.

[42]Rule 7.49 provides:

7.49     Order may be varied or rescinded if shown to be wrong

(1)A party affected by an interlocutory order (whether made on a Judge’s own initiative or on an interlocutory application) or by a decision given on an interlocutory application may, instead of appealing against the order or decision, apply to the court to vary or rescind the order or decision, if that party considers that the order or decision is wrong.

(2)A party may not apply under subclause (1) if the order or decision was made or given—

(a)with the consent of the parties; or

(b)on an interlocutory application for summary judgment under rule 12.4.

(c)[Revoked]

(3)Notice of an application under subclause (1) must be filed and served,—

(a)if it is made by a party who was present or represented when the order was made or the decision given, within 5 working days after the order was made or the decision was given:

(b)if it is made by a party who was not present and not represented, within 5 working days after receipt by the party of notice of the making of the order or the giving of the decision, and of its terms.

…

18     Ryde Holdings Ltd v Sorrenson (1995) 8 PRNZ 339, Haylock v Patek [2010] NZCA 289, [2011] 1 NZLR 100 at [39].

19     Havenleigh Global Services Ltd v Henderson [2015] NZHC 3354.

[43]   This rule allows for a party to apply to vary or rescind an interlocutory order. That term is defined in r 1.3 as follows:

interlocutory order—

(a)means an order or a direction of the court that—

(i)is made or given for the purposes of a proceeding or an intended proceeding; and

(ii)concerns a matter of procedure or grants some relief ancillary to that claimed in a pleading; and

(b)includes—

(i)an order for a new trial; and

(ii)an order striking out the whole or part of a pleading; and

(iii)an order varying or rescinding an interlocutory order.

[44]   As was pointed out by Faire J in Mike Pero (NZ) Ltd v Krishna,20 the above definition clearly provides that an interlocutory order can only be an order made for the purposes of a proceeding or an intended proceeding. “Proceeding” is defined as “any application to the court for the exercise of the civil jurisdiction of the court other than an interlocutory application”.21

[45]   As Faire J went on to say in that case (as is the case here), there was no application to the Court for the exercise of civil jurisdiction, nor was there intended to be, other than an application for interim orders. That was because the parties intended to take the dispute in that case to arbitration, and the interim orders were made by the Court under the Arbitration Act.22 The Court in this case is in precisely the same position.

[46]   In this case, the orders I made determined an originating application under Part 19 of the HCR.23

20 Mike Pero (NZ) Ltd v Krishna, above n 17.

21 At [50].
22 Mike Pero (NZ) Ltd v Krishna, above n 17, at [50].

23 Rule 19.2 provides that applications under the Arbitration Act must be made by originating application (apart from an application for enforcement of an arbitral award as a judgment or an appeal on a question of law).

[47]   Rule 19.10 of the HCR contains a list of rules concerning interlocutory applications which apply to proceedings commenced by originating  application. Rule 7.49 is not included in that list. The commentary in McGechan on Procedure states: 24

The order made on an originating application is a final and not an interlocutory order so the method of challenge is by appeal to the Court of Appeal, and the procedure of review under rr 7.49 and 7.50 is not available.

[48]   I also accept the submission made on behalf of Prestige that in addition to the reasons set out by Faire J, in a case such as this, the Court is expressly confined to the same power as an arbitral tribunal by art 9(2) of Schedule 1 of the Arbitration Act, to the exclusion of the High Court’s interlocutory jurisdiction.25 The Court’s jurisdiction is expressly limited (by operation of art 9(2)) to arts 17A and 17B of Schedule 1 of the Arbitration Act and does not extend to modification of interim orders under art 17H. Article 17H is therefore irrelevant to any assessment under r 7.49. Only an arbitral tribunal, once formed, has jurisdiction under art 17H. The Court in Mike Pero was correct not to consider art 17H and the case cannot be distinguished on that basis.

[49]   MTC’s efforts to expand the Court’s jurisdiction under r 7.49 by reference to other enactments or the HCR does not assist MTC to overcome the procedural impediment that interim measures under the Arbitration Act are by way of final orders on an originating application. They are not interlocutory orders.

[50]   Nor do I accept that r 1.6 can be applied to vary existing procedural rules such as r 7.49. Rule 1.6 only applies to fill gaps where there are no procedural rules governing the particular situation.26 To apply r 1.6 to expand r 7.49 in the way MTC submits can be done would have the opposite effect. It would cut across the express wording and application of r 7.49 which, as I have said, only applies to interlocutory orders.

[51]   As to the three cases relied on by MTC regarding orders having continuing effect, they all relate to variation of continuing interlocutory orders made within the

24     Andrew Beck and others (eds) McGechan on Procedure, above n 5, at [HCR19.10.06].

25     Safe Kids in Daily Supervision Ltd v McNeil, above n 2, at [18].

26     Andrew Beck and others (eds) McGechan on Procedure, above n 5, at [HCR1.06].

Court’s civil jurisdiction pending final judgment within the Court’s jurisdiction. However, that jurisdiction does not apply here because the Court is only seized of the dispute for the purposes of final orders on Prestige’s originating application.

[52]   To conclude, r 7.49 does not apply in this case. MTC must appeal to the Court of Appeal if it wishes to challenge or vary the orders made.27

[53]   The absence of jurisdiction being clear, I do not go on to consider the application on its merits. But I do note the application (even accepting that the memorandum of 18 March 2021 was the application) was well outside the five-day time limit. Where there has been a long delay, time for an application will not be enlarged without sufficient explanation.28 In this case Mr Penney says that since the judgment, MTC has been fully engaged in addressing another condition of my judgment in relation to an electrical report and also MTC believed there would be no opposition to the correction sought. That is an inadequate explanation for the period of 18 days which it took before the memorandum was filed.

Section 27 of the NZBORA 1990

[54]Finally, MTC relies on s 27 of the NZBORA which provides:

27       Right to justice

(1)Every person has the right to the observance of the principles of natural justice by any tribunal or other public authority which has the power to make a determination in respect of that person's rights, obligations, or interests protected or recognised by law.

(2)Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.

(3)Every person has the right to bring civil proceedings against, and to defend civil proceedings brought by, the Crown, and to have those proceedings heard, according to law, in the same way as civil proceedings between individuals.

27     At [HCR19.10.06].

28     Kiwi Operative Dairies Ltd v Capital Dairy Products Ltd (1989) 1 PRNZ 622 (HC) at 625; and

Arkley v Fraser Mill Properties Ltd (1988) 1 PRNZ 616 (HC) at 617.

[55]   Section 27 does not provide a separate jurisdiction enabling a Court to correct orders made in response to an originating application under the Arbitration Act or more generally. It does not apply to this case.

Admissibility of affidavit of Stephen Penney

[56]   I admit the parts of paragraphs 5 to 11 of the affidavit of Stephen Penney sworn on 7 April 2021, which address the reasons for the delay in filing the application. Other parts of those paragraphs that make allegations against Prestige, in particular in paragraphs 6, 7 and 8 which make allegations in connection with Prestige’s alleged damage to the premises, are not admitted. The balance of the affidavit,  containing Mr Penney’s explanations regarding the televisions and the generator are not admitted. As noted above, r 11.10 will not be invoked where further evidence is required; r 11.9 is not available as the judgment has been sealed; and as far as r 7.49 is concerned, there is no jurisdiction to make the order and the affidavit is therefore not required. Section 27 of the NZBORA does not found a separate jurisdiction to correct my judgment.

Result

[57]The application to correct my judgment of 22 February 2021 is refused.

Costs

[58]   Although the Court did not hold a hearing (with consent of the parties) Prestige will have nevertheless incurred costs in filing submissions. It is prima facie entitled to an award of costs being the successful party. If the parties can agree on costs, I direct a joint memorandum be filed within 15 working days of the date of this judgment.

[59]   If costs cannot be agreed, Prestige is to file and serve its memorandum within five working days of the date for the joint memorandum. MTC is to file and serve its costs memorandum within five working days of the date of service of Prestige’s costs

memorandum. Memoranda should not exceed four pages (excluding attachments). I will determine costs on the papers.

Gordon J