Spence v Lynch - [2015] NZHC 735

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-7681 [2015] NZHC 735

BETWEEN
STUART GORDON SPENCE

Plaintiff

AND

CHRISTOPHER MAURICE LYNCH Defendant

AMANDA ADELE WHITE First Third Party/First Applicant

ANNE LEOLINE EMILY FREEMAN Second Third Party/Second Applicant BANK OF NEW ZEALAND

Non-Party/Respondent

Hearing: On the papers

Counsel:

First and second applicants in person
L A O'Gorman for respondent

Judgment:

17 April 2015

JUDGMENT OF KATZ J [Application for recall of judgment]

This judgment was delivered by me on 17 April 2015 at 9:30am
Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Buddle Findlay, Auckland
And to: A White and A L Freeman

SPENCE v LYNCH, WHITE & ORS [2015] NZHC 735 [17 April 2015]

Introduction

[1] Amanda White and Anne Freeman (“the applicants”) were third parties in these proceedings, which were substantively determined on 19 June 2013 by Priestley J. Shortly before trial they sought non-party discovery of three categories of documents from the Bank of New Zealand. I ordered discovery in relation to two of those categories, by way of judgment dated 9 May 2013. The application for documents falling within a third category was not pursued, on the basis of advice from the Bank of New Zealand that the bank statements sought could be obtained without the need for a court order, either through internet banking or in hard copy (on payment of the usual fee of $5.00 per statement). The Bank complied with the non-party discovery orders that were made.

[2] Eighteen months or so after the proceedings had been substantively determined in this Court (I understand there is an extant appeal), the applicants applied to rescind my judgment of 9 May 2013 pursuant to rule 7.51 of the High Court Rules. I declined that application by judgment dated 30 March 2015. I concluded that there was no evidence that the non-party discovery orders (which the applicants had sought) were obtained fraudulently or improperly in terms of r 7.51.

[3] The applicants now seek a recall of my 30 March 2015 judgment, and request that certain sentences be inserted into it “to reflect the true position of all parties”. In essence, the applicants are hoping to achieve by way of the recall application what they failed to achieve in their application to rescind.

Legal principles

[4] Rule 11.9 of the High Court Rules provides:

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[5] The leading statement in New Zealand is the oft-cited statement of Wild CJ in

Horowhenua County v Nash (No 2) that:1

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

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 Spence v Lynch

Details

AGLC: Spence v Lynch [2015] NZHC 735
Case: [2015] NZHC 735
Decision Date: 17 April 2015

CaseChat Overview and Summary

In the case of Spence v Lynch, the applicants, Amanda White and Anne Freeman, sought recall of a previous judgment made by Katz J on 30 March 2015. The applicants aimed to have certain sentences inserted into the judgment to reflect what they claimed was the true position of all parties. The non-party discovery orders, which the applicants had sought, were initially made by Katz J on 9 May 2013. The applicants had previously applied to rescind the judgment, which was declined on the basis that there was no evidence that the non-party discovery orders were obtained fraudulently or improperly. The applicants now sought a recall of the 30 March 2015 judgment to address their concerns regarding the availability of certain bank statements through online banking.

The legal issue at hand was whether the judgment could be recalled and the requested sentences inserted into it. Rule 11.9 of the High Court Rules allows a judge to recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed. The leading statement on recall of judgments in New Zealand is from Horowhenua County v Nash (No 2), which outlines three categories of cases in which a judgment not perfected may be recalled. The Court of Appeal in Unison Networks v Commerce Commission reviewed the third category, stating that it should be narrow and rare.

Katz J found that the recall application was misconceived. The applicants' request to insert additional sentences into the judgment, which required findings on disputed factual issues, was inappropriate. The recall application was declined as the applicants' concerns regarding the availability of certain bank statements through online banking should have been raised with the trial Judge at the time of trial. The matter could not be retrospectively addressed, almost two years later, by rescinding the non-party discovery orders made on the application of the applicants. As the Bank had taken no active steps to oppose the application, no award as to costs was made.

In conclusion, the recall application was declined, and the requested sentences were not inserted into the judgment. The applicants' concerns regarding the availability of certain bank statements through online banking should have been raised with the trial Judge at the time of trial, and the matter could not be retrospectively addressed.

Orders