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 hearing to HCR 1.5(3) which provides:

(3) The court must not wholly set aside any proceeding or the originating process by which the proceeding was begun on the ground that the proceeding was required by the rules to be begun by an originating process other than the one employed.

[8]    Mr Soroka suggests that it is not clear from the decision if the applications were treated as originating applications as Mr Fulton had contended was required and apparently accepted by the Court. The application for recall is based on the perception the declarations sought were not granted on the basis they were not correctly applied for.

[9]    The short point in answer is that the Court is well aware of the provisions of the High Court Rules. There was no need for counsel to expressly refer to particular rules. Next, the Court did not wholly set aside the proceeding on the ground it had been inappropriately brought in any event.

1. As the Court observed in the course of the judgment:5

[38] Generally declarations under the Declaratory Judgments Act 1908 are sought by applications under Part 18 of the High Court Rules, r 18.1(b)(v). Sections 3 and 6 of the Declaratory Judgments Act confirm that applications for declarations are to be brought by originating processes, not interlocutory applications. Such proceedings are to be brought by a statement of claim accompanied by affidavits under the rules in Part 18 of the High Court Rules. The declarations sought have substantive effect and should be brought following the appropriate procedure.

[11]   However, the application was not dismissed solely or even primarily on the ground that it had been incorrectly brought. It was dismissed on the merits, the Court noting that:

[45]    As indicated to Mr Soroka during the course of the hearing the Court is constrained in the orders it can make by the form of the applications before

5      Soroka v Meredith, above n 1.

it and its jurisdiction. It is open for the parties to resolve issues on a practical basis and if necessary seek further orders by consent of the Court to implement such agreements but on the material before it the Court is not able to make the declarations that Mr Soroka seeks on the basis of the interlocutory applications and material currently before it.

Very special reason

[12]   In the balance of his application Mr Soroka appears to be attempting to revisit the substantive merits of the decision including by reference to the authority of Levin v Ikiua.6 Mr Soroka argues that he was successful and the applications should not have been dismissed. He criticises the way the Court dealt with the applications.

[13]   As Mr Fulton submits, Mr Soroka overlooks the fact that FCT was the trustee prior to liquidation. That situation cannot be reversed by the subsequent actions taken by Mr Soroka.

[14]   Mr Soroka suggests that a very special reason for recall is that he is a litigant in person. Mr Soroka had ample opportunity during the hearing to present his case and discuss his position. While Mr Soroka is entitled to represent himself as a lay litigant he nevertheless must comply with the rules and procedure of the Court.

[15]   Mr Soroka also seems to take some issue with the procedure adopted, namely the Court calling on Mr Fulton to address the Court first. The Court called on Mr Fulton first for the reason that Mr Soroka’s material was confusing. The Court considered it would be helpful for the Court, and also for Mr Soroka to understand the issues which the Court proposed to deal with. That gave Mr Soroka the advantage of being able to focus on and respond to the matters in issue.

[16]   Mr Soroka also challenges the liquidators’ costs and the costs awarded. These are not matters that support a recall. Mr Soroka had a right to appeal or seek leave to appeal the judgment, including the costs judgment.

6      Levin v Ikiua HC Auckland CIV-20074-404-6810, 24 July 2009.

Result

[17]   The application for recall is dismissed with costs to both the liquidators and Ms Meredith for the memorandum filed in opposition which I fix at $750.00 in each case.

[18]   The Court has previously dealt with costs on the earlier applications. There should be no need for counsel to file any further memorandum other than a calculation of costs on a 2B basis. The Registrar is to fix costs on a 2B basis as confirmed in the previous judgment for that hearing and the steps taken before it.

Venning J