Rabson v Shepherd

IN THE COURT OF APPEAL OF NEW ZEALAND

CA51/2016
[2016] NZCA 359

BETWEEN	MALCOLM EDWARD RABSON AND RICHARD JOHN CRESER AS TRUSTEES OF THE MALCOLM RABSON FAMILY TRUST Appellants
AND	IAN BRUCE SHEPHERD AND CHRISTINE MARGARET DUNPHY Respondents

Counsel:

Appellant R J Creser in person
H L Thompson for Respondents

Judgment:

(On the papers)

28 July 2016 at 10.30 am

JUDGMENT OF WILD J

The appellants’ application for a recall of the judgment delivered on 23 June 2016 is declined.

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REASONS

The appellant Mr Creser asks the Court to recall the judgment it delivered on 23 June 2016.[1] In that judgment, having reviewed the Deputy Registrar’s decision declining to dispense with security for the costs of this appeal, I upheld that decision.
[1]Rabson v Shepherd [2016] NZCA 283.
I have considered:
(a)the appellant Mr Creser’s application of 30 June for recall;
(b)the memorandum in opposition filed by Mr Thompson for the respondents on 8 July;
(c)Mr Creser’s memorandum of 11 July in reply; and
(d)a memorandum filed by the appellant Mr Rabson on 11 July, also in reply.
I decline to recall my judgment of 23 June 2016. I do not consider that Mr Creser has established that the situation here is one “where for some other very special reason justice requires that the judgment be recalled”.[2] In particular, I see force in the point made by Mr Thompson in paragraph 6 of his memorandum in opposition.
[2]Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 per Wild CJ.

Solicitors:
McMahon Butterworth Thompson, Auckland for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand recently dismissed an application for a recall of a judgment in the case of Rabson v Shepherd. The appellants, Malcolm Edward Rabson and Richard John Creser as trustees of the Malcolm Rabson Family Trust, sought to have the judgment delivered on 23 June 2016 recalled. The respondents, Ian Bruce Shepherd and Christine Margaret Dunphy, opposed the application. The appeal stemmed from the Deputy Registrar's decision to not dispense with security for the costs of the appeal, a decision which was upheld by the Court of Appeal in its earlier judgment.

The legal issue before the Court was whether the situation warranted recalling the judgment delivered on 23 June 2016. The Court considered the application for recall, the memorandum in opposition, and the replies of the parties. Justice Wild, who delivered the earlier judgment, found that the appellant had not established that justice required the judgment to be recalled. The Court found merit in the respondents' argument that the appellant had not provided any special reason to justify a recall of the judgment. The Court concluded that the appellant had not met the threshold for recalling the judgment, as established in Horowhenua County v Nash (No 2).

In light of the above, the Court of Appeal dismissed the appellants' application for recall. The Court adhered to its earlier judgment, which upheld the Deputy Registrar's decision to not dispense with security for the costs of the appeal. This decision is a reminder of the high threshold required for recalling a judgment, and the importance of establishing special circumstances to justify such a recall.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established