Siemer v Heron

[2013] NZHC 1887

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-6587 [2013] NZHC 1887

BETWEEN  VINCENT ROSS SIEMER Plaintiff

ANDMICHAEL RICHARD HERON First Defendant

MICHAEL PETER STIASSNY Second Defendat

RUSSEL MCVEAGH Third Defendant

SIONE TANAKI Fourth Defendant

PIO SAMI

Fifth Defendant

Hearing:                   On the papers

Appearances:

Judgment:                29 July 2013

RESERVED JUDGMENT OF ASSOCIATE JUDGE SARGISSON

This judgment was delivered by me on 29 July 2013 at 3 pm pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date ..........................

SIEMER v HERON [2013] NZHC 1887 [29 July 2013]

[1]      On 28 June 2013 I issued judgment striking out Mr Siemer’s statement of

claim.[1]   By application filed on 3 July 2013 Mr Siemer seeks:

a)        an order for recall of the judgment, or in the alternative b)     that the judgment be corrected.

[1] Siemer v Heron [20130 NZHC 1604.

[2]      The power to recall is set out in High Court Rule 11.9.  The power to make corrections is set under High Court Rule 11.10.

[3]      Essentially, Mr Siemer relies on two concerns.  The first is his concern that paragraph [50] of the judgment states that any action under s 169 of the Companies Act 1993 is misguided and refers in this connection not only to Mr Heron and Russell McVeagh but to Mr Tanaki and Mr Sami.   Mr Siemer says the cause of action plainly was not against the latter two; hence that the reference to them is an error, or a slip or omission.

Decision

[4]      I am satisfied there is no error, accidental slip or omission at paragraph [50]

of the judgment and that this concern does not provide a basis for recall. [5] Mr Siemer will see that paragraph [28] of the judgment states:

[28]      The second cause of action pleads breaches of the Companies Act flowing from the same factual allegations upon which the first cause of action is based.   It is founded on s 169 which allows for “Personal actions by shareholders against directors”. ... The action identifies “the First, Second and Third defendants in particular, but then seeks relief against the “the Defendants”.   I will err on the side of caution and assume for present purposes that Mr Siemer intends for this action to apply to all of the defendants.  Mr Siemer claims as relief against them: damages in the sum of $30,000; aggravated damages in the sum of $15,000; exemplary or punitive damages in the sum of $15,000; and expenses.

[emphasis added]

[5]       After discussion with Mr Siemer and counsel I directed that the hearing proceed in open court for chambers to accommodate, so far as I am able within the limits of an Associate Judge’s jurisdiction, Mr Siemer’s request that the hearing be in open court.  The direction was made with the consent of all of the defendants’ counsel.

...

[7]       It is also appropriate to record that I am exercising the court’s chambers’ jurisdiction in dealing with the present applications.  The parties’ rights of review are not therefore intended to be affected.

[7]      I do not consider it appropriate to recall the judgment or to issue a correction in respect paragraphs [5] and [7] of the judgment. I am satisfied that there is no error or slip or omission. It is sufficient to note with respect to paragraph [5] that:

a)       The  direction  it  sets  out  was  made  shortly  after  the  hearing commenced after hearing Mr Siemer’s request.   The direction was stated several times before and after taking a brief adjournment to allow the Registrar to remove the notice that advised the public were not admitted.

b)The judgment expressly records the basis on which the direction was made:  “to  accommodate,  so  far  as  I  am  able  within  the  limits  of  an Associate Judge’s jurisdiction” Mr Siemer’s request that the hearing be in open court”.

[8]      I  do  not  consider  it  necessary  to  comment  further  on  the  statement  at paragraph [7] of the judgment other than to refer the parties to McGechan on Procedure (loose leafed, Brookers [at J26 P.01]. Relevantly, the paragraph states:

(2)       Review

Where an Associate Judge is exercising the powers of a Judge sitting in Chambers pursuant to s 261, the matter should be dealt with in Chambers, and the decision will then be subject to review under s 26P(1).  If such a matter is in fact dealt with by an Associate Judge sitting robed in open Court, the associate Judge is still exercising a personal jurisdiction conferred on Associate Judges by s 26J, being a jurisdiction of a Judge sitting in Chambers, and is not exercising a jurisdiction or power of Court under s

26I.  The order is, therefore, an order made in Chambers for the purposes of

s26P, regardless of matters of form such as the use of a courtroom, the wearing of robes, or the allowing of access to the public.  Redress is only by application to the High Court (in accordance with the High Court Rules) to review the Associate Judge’s order under s 26P(1); Nottingham v Registered Securities Ltd (in liq) (1998) 12 PRNZ 625.  If, instead of dealing with the matter in Chambers, the Associate Judge directs pursuant to r 7.34 that it be dealt with in Court, the effect of the direction will be that the matter is to be dealt  with  in  Court  by  a  Judge:  Talyancich  v  Index  Developments  Ltd (above) (decided under former r 234).

[9]      For these brief reasons, Mr Siemers application is dismissed.

Associate Judge Sargisson