Sexton v Rice Craig - [2008] NZCA 324

IN THE COURT OF APPEAL OF NEW ZEALAND
CA137/06
[2008] NZCA 324
BETWEENBARRY DEAN SEXTON

Applicant

ANDRICE CRAIG

First Respondent
ANDRICE CRAIG NOMINEE COMPANY LIMITED

Second Respondent

Court:Hammond, Chambers and Arnold JJ
Counsel:Applicant in person

Judgment:27 August 2008 at 10 am
(On the papers)

JUDGMENT OF THE COURT

The application for recall of the judgment of this Court ([2007] NZCA 200) is dismissed.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1] On 23 May 2007 this Court dismissed an application for special leave to appeal out of time under r 29(4) of the Court of Appeal (Civil) Rules 2005 against a decision of Winkelmann J striking out the applicant’s claims against the first and second respondents: [2007] NZCA 200. That application followed the deemed abandonment under r 43 of an appeal which was brought within time.
[2]       The Court, by a majority (Hammond and Chambers JJ), considered that the application should be refused because Winkelmann J’s decision was correct on the basis of the pleadings before her (at [48]). The Judge was not obliged to give the applicant another chance to plead his claim. While she could have taken that course, the Judge was justified in taking the view that such wholesale changes were required that the better course was for the applicant to start again, if he could. The majority considered that the difficulties in the applicant’s pleadings, coupled with the unsatisfactory nature of the explanation given for the failure to utilise the mechanisms in r 43 to obtain further time, meant that the necessary compelling case for granting leave under r 29(4) in deemed abandonment cases had not been made out.
[3]       Mr Sexton then endeavoured to lodge an application for leave to appeal to the Supreme Court of New Zealand against this Court’s refusal of leave. The Registrar declined to receive the application, on the basis that Court had no jurisdiction to accept it. That rejection for want of jurisdiction was confirmed in a judgment of the Supreme Court delivered on 25 June 2007: [2007] NZSC 47.
[4]       By an application dated 10 April 2008 and lodged with this Court on 14 April 2008, Mr Sexton applied for leave to recall our judgment of 23 May 2007. The application was made in person.
[5]       Notwithstanding that the application was lodged on 14 April 2008, it is entirely regrettable that the Registrar overlooked the matter and it was only placed on the presiding Judge’s desk on 14 August 2008. This is quite unsatisfactory, and the Registrar has acknowledged that. The panel has been unable to deal with the matter simply because it did not know of the existence of the application.
[6]       We do not know if the application has been served – there is no affidavit of service – and presently there is no notice of opposition. However, we do not find it necessary to trouble the respondents further, let alone put them to further expense. They are not prejudiced, in…

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 Sexton v Rice Craig

Details

AGLC: Sexton v Rice Craig [2008] NZCA 324
Case: [2008] NZCA 324
Decision Date: 27 August 2008

CaseChat Overview and Summary

Barry Dean Sexton, the applicant, sought leave to recall the Court of Appeal's judgment of 23 May 2007, which dismissed his application for special leave to appeal out of time. The respondents were Rice Craig and Rice Craig Nominee Company Limited. The application for recall was made on 14 April 2008, but it was only brought to the attention of the presiding Judge on 14 August 2008. The Court was required to determine whether the applicant had a compelling reason to recall the judgment and if the delay in filing the application for recall was justified.

The Court considered the principles for recalling a judgment established in Horowhenua County v Nash (No 2) [1968] NZLR 632. The Court found that the applicant had to provide a "very special reason" for recalling the judgment. The Court noted that the applicant had not provided any explanation for the delay in filing the recall application, which was almost ten months after the judgment was made. The Court also found that the applicant's application for recall was not specific enough and merely restated his concerns from the previous application. The Court held that the application for recall did not meet the necessary threshold and was dismissed.

The Court dismissed the applicant's application for recall of the judgment of 23 May 2007. The Court found that the applicant had not provided a convincing explanation for the delay in filing the recall application and that the application for recall did not meet the necessary threshold. The Court held that the applicant's application for recall was not specific enough and merely restated his concerns from the previous application. The Court found that the applicant's application for recall did not meet the necessary threshold and was dismissed. The Court did not intend to trouble the respondents further or put them to further expense as they were not prejudiced by the delay in filing the recall application.

Orders