Mr Rabson seeks an order recalling this Court’s judgment[1] striking out his appeal against a decision of Kós J granting Mr Chapman vacant possession of a property.[2] His main concern appears to be the costs order made by this Court when striking out the appeal.
[1]Rabson v Chapman [2014] NZCA 158 (O’Regan P, White and Miller JJ) [Court of Appeal judgment].
[2]Chapman v Rabson [2012] NZHC 3322.
The appeal had a complicated procedural history, as the attached chronology shows. It is apparent from the chronology that this Court had responded to Mr Rabson’s unsuccessful application for stay or interim relief (heard on 21 December 2012) by allocating an urgent fixture for the appeal itself. Thus the hearing was set down for 13 February 2013. In the absence of Mr Rabson filing a case on appeal, the solicitors for the respondent did so on 23 January 2013.
Instead of paying the security for costs and arguing his appeal on the allocated date, Mr Rabson took the various steps set out in the chronology to challenge the Registrar’s decision. Once the review process of this Court was exhausted, Mr Rabson signalled an intention to seek leave to appeal to the Supreme Court. This meant the panel hearing the appeal was faced with a late application for adjournment by Mr Rabson, the day before the scheduled hearing. The reality was that, as payment for security for costs had not been met, the appeal hearing could not proceed. The presiding Judge, O’Regan P, recorded the position in a minute issued on 12 February 2013.[3]
[3]Rabson v Chapman CA855/2012, 12 February 2013 [Minute of the Court].
Relevant for present purposes are the directions set out in the minute. The President said this:
[7] Under r 37 of the Court of Appeal (Civil) Rules the Court has the power to strike out an appeal if security for costs has not been paid by the time payment is due, if an application is made seeking that outcome. If the appellant wishes to pursue his challenge to the decision of Randerson J in the Supreme Court, he should file an application for leave to appeal in that Court within the next seven days. If he does not do so then it will be open to the respondent to make an application for the appeal to be struck out. Even if he does do so, there is nothing to stop the respondent making an application to strike out the appeal but in that event it is unlikely that this Court would consider the application until the decision of…

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.

Continue reading Rabson v Chapman

Details

AGLC: Rabson v Chapman [2016] NZCA 45
Case: [2016] NZCA 45
Decision Date: 4 March 2016 at 4.00 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Malcolm Edward Rabson applied for a recall of the Court's previous judgment which had struck out his appeal against a decision of Kós J granting Wayne Seymour Chapman vacant possession of a property. The appeal had a complex procedural history, with Rabson failing to file a case on appeal, pay the security for costs, or appear at the scheduled hearing. The Court of Appeal struck out the appeal and ordered Rabson to pay costs, which he sought to recall on two grounds. First, Rabson claimed he lacked standing to be involved in the appeal, and second, that the appeal was "long dead" by the time the Court considered the strike-out application and it ought not to have been "revived."

The Court of Appeal considered the applicable principles for recalling a judgment, as set out in Horowhenua County v Nash (No 2). The Court noted that there are three categories of cases in which a judgment may be recalled: where there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; where counsel have failed to direct the Court's attention to a legislative provision or authoritative decision of plain relevance; and where for some other very special reason justice requires that the judgment be recalled.

The Court found that Rabson's grounds for recalling the judgment were without merit. Rabson's status as an undischarged bankrupt did not affect the Court's awareness of his standing, and the Court had exercised its discretion to award costs against Rabson. The Court also found that the second ground, regarding the deemed abandonment of the appeal, was not applicable as a case on appeal had been filed and a fixture had been allocated. The Court concluded that the recall application did not fall within the "very special reasons" ground and dismissed the application for recall. There was no order as to costs.

Orders