Soroka v Meredith - [2023] NZHC 2891

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-1316

[2023] NZHC 2891

UNDER the Property (Relationships) Act 1976 and the Land Transfer Act 2017

IN THE MATTER

of an application to recall a decision by Venning J dated 6 September 2023

BETWEEN

GLENN MICHAEL SOROKA and FLYING

CROSS TRUST LTD as trustees of the FLYING CROSS TRUST (in liquidation) Applicants

AND

LOUISE CLARE MEREDITH

Respondent

Hearing: (On the papers)

Judgment:

16 October 2023

JUDGMENT OF VENNING J

Application to recall judgment

This judgment was delivered by me on 16 October 2023 at 3.45 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Craig Griffin Lord, Auckland

McVeagh Fleming, Auckland

Counsel: K W Fulton, Auckland
Copy to: Applicants

SOROKA v MEREDITH [2023] NZHC 2891 [16 October 2023]

[1] In a judgment delivered on 7 September 2023 the Court dismissed Mr Soroka’s application to amend the Tomlin order (more correctly to amend the terms of the settlement agreement) and also dismissed his interlocutory application for declarations.1

[2] Mr Soroka, who continues to represent himself, has filed an application seeking to have the judgment recalled. The application is opposed by both the respondent and also the liquidators of Flying Cross Trust Limited (in liquidation) (FCT).

[3] As advised in a minute issued on 6 October 2023,2 the application is to be dealt with on the papers.

[4] The principles regarding recall are well settled. Recall is provided for by r 11.9, High Court Rules 2016. The leading statement remains that of Wild C J in Horowhenua County v Nash (No 2):3
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] That approach was confirmed and applied by the Supreme Court in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd.4

[6]Mr Soroka appears to rely on two of the above grounds, namely:

(a)counsel’s failure to direct the Court to a relevant legislative provision; and

1      Soroka v Meredith [2023] NZHC 2510.
2      Minute of Venning J, dated 6 October 2023.
3      Horowhenua County v Nash (No 2) [1968] NZLR 632 at p 633.
4      Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122.

(b)the existence of another “very special reason”.

Failure to refer to a relevant legislative provision

[7] Mr Soroka notes that there was no reference by counsel during the…

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 Soroka v Meredith

Details

AGLC: Soroka v Meredith [2023] NZHC 2891
Case: [2023] NZHC 2891
Decision Date: 16 October 2023

CaseChat Overview and Summary

In the High Court of New Zealand, the case of Soroka v Meredith involved Glenn Michael Soroka, as an applicant, who sought to recall a previous decision rendered by Venning J on September 6, 2023. The dispute involved the Property (Relationships) Act 1976 and the Land Transfer Act 2017, and was between Soroka, representing himself, and Louise Clare Meredith, with Flying Cross Trust Ltd as trustees of the Flying Cross Trust (in liquidation) also involved as parties. The core of the dispute was the recall of a judgment that dismissed Soroka's application to amend the Tomlin order and his interlocutory application for declarations. The application to recall the judgment was opposed by both Meredith and the liquidators of Flying Cross Trust Ltd.

The legal issues that the Court had to resolve included whether the judgment could be recalled based on the failure of counsel to direct the Court's attention to a relevant legislative provision and whether there existed any other "very special reason" justifying the recall of the judgment. Soroka argued that there was a failure to refer to a relevant legislative provision and that there was another "very special reason" for recall. The Court, however, dismissed these grounds. It held that there was no necessity for counsel to explicitly reference specific rules, and that the judgment was dismissed on the merits, not because it was incorrectly brought. The Court also rejected Soroka's attempt to revisit the substantive merits of the decision and the suggestion that being a litigant in person constituted a "very special reason" for recall.

The Court concluded that the application for recall was dismissed with costs awarded to both the liquidators and Meredith for the memorandum filed in opposition. The Court further instructed that there should be no need for further cost submissions other than a calculation of costs on a 2B basis, in line with the previous judgment. The Registrar was tasked with fixing the costs on a 2B basis as previously confirmed.

Orders