Reid v Castleton-Reid
[2019] NZCA 452
•24 September 2019 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA266/2018 [2019] NZCA 452 |
| BETWEEN | ROSS RONAYNE REID |
| AND | BARRY ROSS LAURENCE CASTLETON-REID |
| Hearing: | On the papers |
Court: | Courtney, Venning and Dunningham JJ |
Counsel: | S L Abdale for Appellant |
Judgment: | 24 September 2019 at 2.30 pm |
JUDGMENT OF THE COURT
A The application for recall is granted.
BParagraph [95] of the judgment is recalled and replaced with:
[95] The case is remitted to the High Court for a hearing to determine the parties’ respective interests in the balance of the money from the Trading Account and for determination of Mr Castleton-Reid’s affirmative defences.
CThere is no order as to costs.
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REASONS OF THE COURT
(Given by Venning J)
In its judgment of 20 August 2019, this Court allowed Mr Reid’s appeal and remitted the case to the High Court for hearing to determine the parties’ respective interests in the balance of the money from the Trading Account.[1]
[1]Reid v Castleton-Reid [2019] NZCA 372 at [95].
The respondent seeks recall of the judgment under r 8A of the Court of Appeal (Civil) Rules 2005 to include a direction that when the matter is before the High Court, the High Court also determine Mr Castleton-Reid’s affirmative defences.
The application for recall is opposed.
The test for recall of civil judgments was described by Wild CJ in Horowhenua County v Nash (No 2) as follows:[2]
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.
[2]Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC) at 633.
There has been no amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority. Nor did counsel fail to direct our attention to a relevant legislative provision or authoritative decision. The application for recall relies on the third category of case. The question is whether for some other very special reason justice requires that the judgment be recalled.
The decision appealed against was Gordon J’s finding that Mr Reid’s payment of funds into the Trading Account was a gift.[3] The focus of the hearing before Gordon J and this Court was on that issue. The affirmative defences pleaded by Mr Castleton‑Reid (abuse of process, estoppel, and change of position) were not addressed or determined by Gordon J and were not referred to before this Court on appeal.
[3]Reid v Castleton-Reid [2018] NZHC 782.
Ms Matthew submitted that, at the commencement of closing submissions before Gordon J, the Judge had sought the parties’ agreement that if it was decided that the $1,700,000 advance was a gift, it would not be necessary for her to consider, or address, the affirmative defences. Ms Matthew considered that both counsel had expressly agreed to that approach. For that reason the affirmative defences were not addressed.
Ms Abdale’s recollection was slightly different. Gordon J asked her whether, if the Court decided that the $1,700,000 advance was a gift, it would not be necessary to determine Mr Reid’s other causes of action and Mr Castleton-Reid’s affirmative defences as they would effectively be disposed of. Ms Abdale confirmed that she agreed. She says she then resumed her oral submissions, which addressed the affirmative defences. Counsel has no specific recollection of the same question being posed to Ms Matthew.
In the High Court, Gordon J dealt with the issue of the affirmative defences in the following way:
Affirmative defences
[143] All causes of action having failed, it is not necessary to consider the affirmative defences raised by Mr Castleton-Reid.
As noted, the affirmative defences were not referred to at all by counsel in their submissions to this Court. The focus was on the Judge’s finding that Mr Reid had intended to gift the $1,700,000 to Mr Castleton-Reid.
Ms Abdale submitted that the present case was analogous to the unsuccessful attempt to recall in Unison Networks Ltd v Commerce Commission.[4] In Unison, this Court noted that the principal reason advanced for recall was that the Court had failed to discuss arguments made by the applicant.[5] This Court rejected that as a basis for recall in the following passage:
[34] We conclude by observing that the Court’s reasons and the issues it chooses to address are within the discretion of the Court. It will often be unnecessary to deal with all of the submissions presented because of the way in which a case is finally resolved. The Court plainly is able to address submissions in the manner it chooses. While a decision may be recalled where a material issue properly put before the Court is not addressed, excluding a slip or minor error, the cases in which justice will require a recall on this basis are likely to be rare.
[4]Unison Networks Ltd v Commerce Commission [2007] NZCA 49.
[5]At [5].
The principle from the Unison case is that, where the point has been before the Court but it has decided not to deal with it or has dealt with it on a narrower or different basis to that upon which it was argued, that is not a ground for recall.
In the present case Mr Castleton-Reid’s affirmative defences were not considered in the High Court. The Judge did not need to consider them because she found Mr Reid had gifted the $1,700,000 to Mr Castleton-Reid. But that finding has been reversed by this Court on appeal. The affirmative defences now become relevant.
As a consequence of the appeal being allowed the case has to be remitted back for a hearing in the High Court to determine the respective entitlements in relation to the proceeds of the Trading Account. Mr Reid’s entitlement to a share of the proceeds is on the basis that he did not intend to gift the $1,700,000 to Mr Castleton-Reid. Apart from alleging a gift, Mr Castleton-Reid had raised in his pleadings in the High Court other defences to Mr Reid’s claim to the money. Those defences have not been considered as yet. In the circumstances it is in the interests of justice that they be considered by the Judge in the context of the consideration of Mr Reid’s claim to the money. In considering the defences the Judge will no doubt take into account the findings and observations of this Court in relation to the factual matters which bear on those defences.
Ms Abdale also noted that the issues the subject of the litigation arose in May 2010 and Mr Reid is now 97 years of age.
As the matter has to be heard in the High Court in any event Ms Abdale’s observation as to the length of time that has passed since the events in issue is not as significant as it otherwise might be.
For those reasons, the application to recall is granted.
Paragraph [95] of the judgment is recalled and replaced with:
[95] The case is remitted to the High Court for a hearing to determine the parties’ respective interests in the balance of the money from the Trading Account and for determination of Mr Castleton-Reid’s affirmative defences.
Given the way the matter has arisen, there will be no order for costs.
Solicitors:
Clive Gardner Law, Mt Maunganui for Appellant
Rennie Cox, Auckland for Respondent
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