Slavich v Slavich

[2025] NZHC 2097

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2024-404-3107

[2025] NZHC 2097

BETWEEN

ANTHONY NICHOLAS SLAVICH

First Plaintiff

KIRSTY DE MEYER
Second Plaintiff

SLAVICH PROPERTIES LIMITED
Third Plaintiff

JOHN SLAVICH

Fourth Plaintiff

NIC SLAVICH LIMITED

Fifth Plaintiff

AND

PETER STEVEN SLAVICH, FRANA VAN HELLEMOND, MARICA SLAVICH and NICHOLAS SLAVICH

Defendants

Hearing:	On the papers
Appearances:	Kirsty De Meyer and John Slavich are self-represented T M Braun / P J McHugh for the Defendants
Judgment:	30 July 2025

JUDGMENT OF ASSOCIATE JUDGE C B TAYLOR

[Application to recall a judgment]

This re-issued judgment was delivered by me on 30 July 2025 at 3:00pm

pursuant to Rule 11.5 of the High Court Rules

…………………………. Registrar/Deputy Registrar

SLAVICH v SLAVICH, [2025] NZHC 2097 [29 July 2025]

Introduction

[1]                 On 23 June 2025 the Court issued a judgment on the plaintiff ‘s application for summary judgment and the defendant’s counter application for summary judgment, regarding an agreement to arbitrate (the Judgment).1 The Judgment dismissed the plaintiffs’ application for summary judgment and granted the defendants’ application for summary judgment.

[2]                 By application dated 27 June 2025, the plaintiffs (who are self-represented) are seeking recall of the Judgment. Counsel for the defendants filed a memorandum in opposition to the application dated 11 July 2025.

[3]The application was dealt with on the papers.

Legal principles

[4]                 The grounds upon which a judgment may be recalled are strictly limited. The leading statement is that of Wild CJ in Horowhenua County v Nash (No.2):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.

[5]                 The only category in which the plaintiffs’ complaints could conceivably fall is the third category articulated by Wild CJ. This gives the Court the ability to recall a judgment for a very special reason to avoid an injustice.

[6]                 The third category is not defined with particularity in any judgment. However, it is quite clear that the discretion to recall must be exercised with circumspection, and

1      Slavich v Slavich [2025] NZHC 1659.

2      Horowhenua County v Nash (No.2) [1968] NZLR 632 at 633 (SC).

it must not in any way be seen as a substitute for appeal.3 In particular, there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extent to a party recasting arguments previously given and re-presenting them in a new form. It does not extend to putting forward further arguments that could have been raised at the earlier hearing but were not. It does not extend to asking the Court to reverse interlocutory decisions such as adjournment decisions on the grounds they were wrongly decided.

[7]In Ngahuia Reihana Whanau Trust v Flight, Anderson P commented:4

It is becoming a matter of concern not just to this Court but to others in the western common law system that disaffected litigants, usually appearing in person, repeatedly make application for recall of judgments which they steadfastly refuse to accept. It is timely to characterise plainly unmeritorious applications of that sort as an abuse of the Court’s process and to reaffirm the rarity of legal justification for recalling judgments.

Plaintiffs’ position

[8]                 The plaintiffs submit that the Judgment should be recalled for two very special reasons:

(a)The Judgment makes three of the defendants drastically worse off, which should not be the outcome of a judgment in their favour;

(b)the Judgment misapprehended the events and facts because of misleading affidavit of Ms Marika Slavich dated 5 March 2025, and the defendants’ submissions were misleading.

Judgment makes three of the defendants drastically worse off

[9]                 The argument the plaintiffs present is that as the Judgment dismissed the application that there was a binding agreement for arbitration, the three defendants,

3      Faloon v Commissioner of Inland Revenue (2006) NZTC 19,832 (HC) at [13].

4      Ngahuia Reihana Whanau Trust v Flight CA23/03, 26 July 2004 at [3].

Peter, Frana Van Hellemond, Marica and Nicholas,5 are worse off in that, had the dispute been settled by arbitration, they would have received around $600,000 as a result of settlement of the dispute. The plaintiffs submit the amount foregone by the three defendants as a result of the Judgment could be increased to over $700,000 if certain interest write off calculations on loans are taken into account.

[10]             The plaintiffs submit that the position of the three affected defendants should not be materially worse as an outcome resulting from the Judgment and accordingly the Judgment should be recalled to allow this position to be considered.

Misleading evidence in affidavit of 5 March 2025 by Marica

[11]             The plaintiffs assert that Marica’s affidavit was “conscious and deliberate dishonesty” and the plaintiffs cited documents which they say established that the matters in dispute which were to be arbitrated were known to the defendants in detail. The plaintiffs assert that the defendants did not present to the Court documents they knew existed, which evidenced that the disputes between the parties over the years that were to be put to the arbitrator, were documented and known in detail by the defendants.

[12]             The plaintiffs submit that Marica’s evidence that the meeting on 25 March 2025 was dealing with a “family dispute” was deliberately misleading.

Defendants’ position

[13]             With respect to the plaintiffs’ argument that the Judgment makes three of the defendants worse off and that this should not be an outcome from a judgment in their favour, counsel for the defendants submits that this argument could have been raised during the hearing but was not and therefore is not a valid ground to recall the Judgment.

5      Because of the commonality of surnames, christian names are used in this judgment, with no disrespect intended.

[14]             Counsel for the defendants submits that it is an untenable argument by the plaintiffs that only appropriate outcome should have been the determination in the plaintiffs’ favour, as that outcome would have made the defendants better off. Counsel for the defendants submits that the defendants chose to defend the plaintiffs’ application and take the additional step of applying for the defendants’ summary judgment, and the outcome from the Judgment is the outcome sought by the defendants.

[15]             As to the second reason given by the plaintiffs that the evidence of Marica was deliberately misleading, counsel for the defendants submits that this is an attempt to re-litigate matters already considered or to challenge findings of fact in the Judgment which cannot be entertained on an application to recall a judgment. Counsel for the defendants submits that the Judgment did not resolve any conflicts of evidence and the Judgment noted their existence and affirmed the well established legal principle that the summary judgment process is not appropriate to resolve conflicts of evidence.

[16]             As to the procedural matter regarding the annexures to the recall application, counsel for the defendants submits the annexures have been inappropriately placed before the Court and should not be considered as privilege has not been waived by the defendants in respect of those documents.

Result

[17]             I am of the view that the plaintiffs’ application for recall of the Judgment should be dismissed. The reasons for this view are:

(a)The reason given by the plaintiffs that the Judgment makes three of the defendants significantly worse off is not a valid reason for recall of the Judgment. The defendants opposed the plaintiffs’ application for summary judgment and sought defendants’ summary judgment against the plaintiffs and the Judgment was the outcome they sought;

(b)the reason given by the plaintiffs regarding the alleged dishonesty of Marica’s evidence is an attempt to re-litigate the conflict of evidence

dealt with in the Judgment, and is not a valid reason to recall the Judgment. As has been noted in the Judgment, the summary judgment procedure is not an appropriate forum to resolve conflicts of evidence.

[18]             As to the procedural point regarding the annexures to the recall application, it is noted that privilege has not been waived in respect of these documents and that they were inappropriately placed before the Court.

Orders

[19]I make the following orders:

(a)The plaintiffs’ application to recall the Judgment is dismissed;

(b)the parties are to endeavour to agree costs in respect of the plaintiffs’ summary judgment application and the defendants’ counter application for summary judgment as decided in the Judgment in favour of the defendants, and in respect of the plaintiffs’ recall application, also decided in favour of the defendants. Costs in each case should follow the event. If the parties are unable to agree costs in respect of the summary judgment applications and the plaintiffs’ recall application within 20 working days of the date of this judgment, then each party is to file memoranda as to costs (not to exceed five pages) within 10 working days from the expiry of the 20 working day period. A decision as to costs will then be made on the papers.

……………………………..

Associate Judge Taylor