Raptorial Holdings Ltd (in receivership) v Elders Pastoral Holdings Ltd

[2000] NZCA 398

IN THE COURT OF APPEAL OF NEW ZEALAND CA 295/99

BETWEEN	RAPTORIAL HOLDINGS LIMITED (IN RECEIVERSHIP)
First Appellant

AND	TAIPA RESORT MANAGEMENT LIMITED (IN RECEIVERSHIP)
Second Appellant
AND	NEVILLE MCCLUTCHIE BAKER
Third Appellant

AND	CEDRIC GEORGE GRANTHAM
Fourth Appellant
AND	NIGEL BRUCE SMITH
Fifth Appellant

AND	JENNIFER MARGARET SMITH
Sixth Appellant

AND	ELDERS PASTORAL HOLDINGS LIMITED
First Respondent

AND	ELDERS RURAL FINANCE NZ LIMITED
Second Respondent

Hearing:

30 August 2000

Coram:

Thomas J
Goddard J
Panckhurst J

Appearances:

R A Dobson QC and G Manktelow for Appellants
P R Heath QC and K J Crossland for Respondents

Judgment:

Judgment on Recall Application:

8 November 2000

18 December 2000

JUDGMENT OF THE COURT ON RECALL APPLICATION DELIVERED BY PANCKHURST J

1. Following delivery of the judgment of the Court on 8 November 2000 Elders applied, on 14 November, to recall such judgment.  In particular, it sought the recall of this Court’s order whereby the entry of summary judgment was set aside in whole and the case remitted to the High Court for hearing, in favour of “an order setting aside the summary judgment (with respect to) the exit fee and (a remission) to the High Court for a hearing on that matter alone”.  Put another way, Elders sought confirmation of its summary judgment for the amount claimed after deduction of the exit fee of $1.5m, that is judgment for approximately $2.75m together with interest and costs.

2. The basis of the present application is our conclusion that all of the arguments raised on behalf of the appellants, save for that in terms of the Credit Contracts Act with reference to the exit fee, were untenable.  Hence, it is now said, that the entry of summary judgment should, in terms of Rule 136(1) of the High Court Rules, have been confirmed for that “particular part” of the claim in relation to which there was no arguable defence.

3. The grounds upon which a judgment may be recalled are familiar, being : the emergence since the hearing of a statutory amendment or new judicial decision of higher authority and relevance, the omission of counsel to direct attention to an existing legislative provision or authoritative decision of direct relevance, or some other very special reason in terms of the interests of justice : Horowhenua County v Nash (No 2) [1968] NZLR 632 and Gazely v Attorney General (1993) 10 PRNZ 47.  In this instance only the third, and most general ground, can be called in aid.

4. We of course accept that it is competent to enter summary judgment for part of a claim.  Rules 136 and 137 recognise as much.  The utility of these two rules was discussed in AGC (NZ) Ltd v McBeth [1992] 3 NZLR 54, 61 (CA) where the Court said:

   We see no reason to prevent judgment being given for an amount which is indisputably due and owing but which is only part of the claim and therefore not the whole of the relief sought under the particular cause of action.  This is not to say that courts are to strive to find some indisputable amount and then to give judgment for it.

The Court then noted there will be cases where it would be unjust to give summary judgment, even in part, on account of the existence of a cross-claim, set-off or counterclaim.  Later still it noted:

On the other hand it is equally unjust that by raising some dispute as to part of a claim the defendant should be entitled to prevent the entry of judgment at all.  That would seem to defeat the purpose of the summary judgment procedure.

1. In our view the discussion in AGC v McBeth demonstrates that whether it is appropriate to enter summary judgment in relation to part of a claim involves the exercise of a discretion.  There can be no fixed rules.  The circumstances of the particular case must be closely considered.  In the end the interests of justice will be determinative.

2. We are not persuaded that the present case is one where it is appropriate to recall and amend our original order, to leave the entry of summary judgment in the High Court extant save as to the amount based on the exit fee.  We are influenced by three considerations.  In the first place Elders did not pursue this issue in the course of argument.  Whilst that may be understandable, given the extent and breadth of the challenge to the original judgment, nonetheless we consider that the possibility of a summary judgment for part of the claim was foreseeable. 

3. Secondly, the powers of the Court upon the reopening of a credit contract pursuant to s14 of the Act are extensive.  We cannot safely assume that the exit fee will be regarded as an entirely severable aspect of the credit arrangement.  It may emerge, following discovery and upon a full hearing of the claim, that the exit fee and other aspects of the arrangement were interrelated.  In short, to allow entry of judgment for part of the claim as is now sought may unduly fetter the High Court in the exercise of the broad discretion conferred by s14 of the Credit Contracts Act.

4. Thirdly it seems to be implicit in the application to recall that by virtue of our decision an issue estoppel, or cause of action estoppel, arose in favour of Elders.  That may not be so.  It is neither necessary nor desirable that we explore such question.  It is sufficient to note the judgment of this Court in Joseph Lynch Land Co Limited v Lynch [1995] 1 NZLR 37 (CA), in which the binding effect at a substantive hearing of an earlier interlocutory decision was authoritatively considered. The matter is one which must be left for determination in the High Court.

5. For these reasons the application for recall is denied.  The appellants are entitled to costs in the sum of $750.

Solicitors:

Guy & Toby Manktelow, Wellington, for Appellants

Stace Hammond Grace & Partners, Hamilton, for Respondents