ROBERT JAMES CUMMINS AND BODY CORPORATE 172108

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA680/2023
[2024] NZCA 492

BETWEEN	ROBERT JAMES CUMMINS Applicant
AND	BODY CORPORATE 172108 Respondent

Court:	French and Ellis JJ
Counsel:	Applicant in person J B Orpin-Dowell and T J G Allan for Respondent
Judgment: (On the papers)	27 September 2024 at 11.00 am

JUDGMENT OF THE COURT

AThe applicant to is to pay the respondent’s costs in relation to his unsuccessful application for leave to appeal in the sum of $3,386.00.
BThe applicant to is to pay the respondent indemnity costs in relation to his unsuccessful application for recall of our leave decision in the sum of $2,200.00 (plus GST).

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REASONS OF THE COURT

(Given by Ellis J)

On 8 July 2024, this Court declined Mr Cummins’ application for leave to appeal a decision in the High Court, refusing to halt the bankruptcy proceedings taken by Body Corporate 172108 (the Body Corporate) against him.[1] A recent decision of Powell J in the High Court relating to the wider dispute between Mr Cummins and the Body Corporate was referred to in the course of our judgment.[2]
[1]Cummins v Body Corporate 172108 [2024] NZCA 303.
[2]Body Corporate 172,108 v Meader [2024] NZHC 1280.
On the same day (8 July), Mr Cummins applied for recall of this Court’s judgment on the ground that, on two occasions, the Court had misinterpreted the decision of Powell J. That application was declined on 22 July 2024.[3]
[3]Cummins v Body Corporate 172108 [2024] NZCA 333.
There are outstanding matters of costs, in relation to both the application for leave to appeal and the recall application.
As to the former, Mr Cummins now agrees that costs in the claimed sum of $3,386.00 (as claimed by the respondents) are appropriate and we make an order that he pay costs to the Body Corporate in that amount accordingly.
As to the latter (costs on recall), there is no agreement. The Body Corporate is seeking indemnity costs totalling $2,200 (plus GST) in that regard. The Body Corporate says indemnity costs are warranted because Mr Cummins has “adopted a vexatious pattern of seeking to recall a judgment without a proper basis”. More particularly, the Body Corporate refers to four previous occasions on which Mr Cummins has sought recall of a judgment of either the High Court or this Court, none of which have been successful.[4] Moreover, in one of these, this Court ordered him to pay indemnity costs on the recall application because:[5]
(a)the recall application was a further step taken in an appeal which was itself an abuse of process; and
(b)unmeritorious applications to recall judgments are an abuse of process in and of themselves.
[4]Body Corporate 172108 v Manchester Securities Ltd, HC Wellington CIV-2018-485-225, 28 February 2020 (minute of Johnston AJ) at [3]–[8]; Body Corporate 172108 v Manchester Securities Ltd (in liq) [2022] NZHC 492 at [4]; Body Corporate 172,108 v Cummins [2022] NZHC 1031; and Cummins v Body Corporate 172108 [2022] NZCA 153 [CA indemnity costs decision] at [1].
[5]CA indemnity costs decision, above n 4, at [25].
For his part, Mr Cummins says that:
(a)most of the Body Corporate’s submissions opposing recall addressed the indemnity costs issue, rather than the application for recall itself; and
(b)the basis for his recall application — namely that this Court had wrongly interpreted a decision of Powell J in the High Court — was made bona fide and on reasonable grounds, and that his point about that was borne out by the terms of the sealed order in the High Court.
In our view, there is nothing in the first of Mr Cummins’ points. The Body Corporate did oppose the application for recall and did file a memorandum of submissions addressing its substance (as well as the question of costs).
Nor is the second point persuasive. Mr Cummins (like many others who come before the courts) continues to demonstrate a misunderstanding of the ambit of the recall jurisdiction. It is not to contest aspects of a judgment with which the applicant disagrees or considers to be wrong. Today, there can be no question that unmeritorious applications for recall occupy far too much of the courts’ valuable time.
In our view, both the specific context of a further unmeritorious application for recall, and the wider context of the ongoing litigation involving Mr Cummins, favour a grant of indemnity costs and we make an order accordingly.

Result

The applicant to is to pay the respondent’s costs in relation to his unsuccessful application for leave to appeal in the sum of $3,386.00.
The applicant to is to pay the respondent indemnity costs in relation to his unsuccessful application for recall of our leave decision in the sum of $2,200.00 (plus GST).

Solicitors:
Grove Darlow & Partners, Auckland for Respondent

The Court of Appeal of New Zealand heard an application by Robert James Cummins against Body Corporate 172108. The dispute arose from the High Court's decision to proceed with bankruptcy proceedings against Mr Cummins, a decision which the Court of Appeal had previously upheld. Mr Cummins sought leave to appeal and later applied for a recall of the Court of Appeal's decision, both of which were declined. The Court was tasked with determining the costs associated with both unsuccessful applications.

The primary legal issue was the appropriateness of costs for Mr Cummins' unsuccessful applications for leave to appeal and recall of the Court of Appeal's decision. Specifically, the Court had to decide whether ordinary costs or indemnity costs should be awarded to Body Corporate 172108 for the recall application, given Mr Cummins' history of similar unsuccessful applications. The Court also needed to address Mr Cummins' argument that his recall application was based on a bona fide misunderstanding of the High Court's decision.

The Court of Appeal found that Mr Cummins' application for leave to appeal was indeed unsuccessful and that the costs of $3,386.00 claimed by the Body Corporate were appropriate. Regarding the recall application, the Court noted Mr Cummins' pattern of making unmeritorious recall applications, which it deemed to be an abuse of process. The Court of Appeal held that the Body Corporate was entitled to indemnity costs of $2,200.00 (plus GST) due to the vexatious nature of Mr Cummins' recall application. The Court emphasized that the recall jurisdiction is not meant for contesting judgments but for exceptional circumstances, which were not present in this case.

The Court made an order that Mr Cummins pay the Body Corporate $3,386.00 for the unsuccessful application for leave to appeal. Additionally, it ordered Mr Cummins to pay the Body Corporate $2,200.00 (plus GST) as indemnity costs for the unsuccessful recall application.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established