TSB Bank Ltd v Burgess - [2014] NZHC 204

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CIV-2010-009-002978 [2014] NZHC 204

BETWEEN
TSB BANK LIMITED

Plaintiff

AND

GARY OWEN BURGESS Defendant

Judgment: 18 February 2014

JUDGMENT OF GENDALL J (Dealt with on the papers)

[1] On 10 December 2013 I gave judgment in this proceeding in favour of the plaintiff. On 16 December 2013 the defendant endeavoured to file and serve an application to have that judgment recalled. It appears that no filing fee was paid. It seems the Court registry advised that the defendant’s application had not been accepted for filing.

[2] A notice of opposition to the defendant’s application was filed by the plaintiff on a provisional basis however. This occurred on 20 December 2013.

[3] On 28 January 2014 I understand the defendant served notice that he was appealing my 10 December 2013 judgment to the Court of Appeal.

[4] So far as the defendant’s recall application is concerned, I leave on one side here whether it has been appropriately filed or whether the required filing fee may as yet have been paid.

[5] What is clear in terms of r 11.9 High Court Rules is that a Judge may recall a judgment at any time before a formal record of it is drawn up and sealed.

TSB BANK LIMITED v GARY OWEN BURGESS [2014] NZHC 204 [18 February 2014]

[6] The principles concerning recall of judgment were set out in the leading statement in New Zealand of Wild CJ in Horowhenua County v Nash (No 2).1 On this, he stated:

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.

[7] McGechan on Procedure at para HR11.9.01(6) states:

It will generally not be appropriate for a trial court to recall its judgment or order a new trial, once appeals have been lodged: Russell v Klinac HC Whangarei AP18/01 11 December 2011 at [15].

[8] In Russell v Klinac the High Court noted at [15]:

It is clear that a common law rule exists that once a court has made an order, and an appeal has been lodged against that order, the court becomes functus officio and is therefore unable to take further action in relation to the matter.

[9] The Court of Appeal cited that case in White v New Zealand Stock Exchange2

and stated:

It is repugnant in both theory and practice that a High Court Judge should be called upon to determine an…

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.

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Details

Case: [2014] NZHC 204
Decision Date: 18 February 2014

CaseChat Overview and Summary

In the matter of TSB Bank Limited versus Gary Owen Burgess, the defendant sought to recall a judgment rendered by Gendall J on 10 December 2013, in favour of the plaintiff. The defendant had initially endeavoured to file an application to recall the judgment on 16 December 2013, but it appears that the application was not accepted for filing due to the absence of a filing fee. Despite this, the plaintiff filed a notice of opposition on a provisional basis on 20 December 2013. The defendant subsequently served notice of an appeal against the judgment on 28 January 2014. The primary legal issue for the court to decide was whether the defendant's application to recall the judgment could proceed, given that an appeal had already been lodged against the judgment. The court also needed to consider the principles governing the recall of a judgment.

The court noted that, under the High Court Rules, a judgment could be recalled before it was formally recorded and sealed. However, it also highlighted that once an appeal had been lodged, the court was generally unable to take further action in relation to the matter. The court referred to the authority of Russell v Klinac, which established that a trial court becomes functus officio once an appeal has been lodged. The court of appeal had similarly stated in White v New Zealand Stock Exchange that it was inappropriate for a High Court judge to determine an application to recall their judgment when an appeal against that judgment was extant. Given that the defendant had already appealed the judgment, the court concluded that the application to recall the judgment was nugatory. Furthermore, the application to recall the judgment was without merit as it did not fall within any of the three categories of cases in which a judgment could be recalled, as outlined in Horowhenua County v Nash (No 2). As a result, the application to recall the judgment was dismissed, and the court directed that the judgment of 10 December 2013 be sealed. Costs on the present application were reserved due to the extant appeal before the Court of Appeal.

Orders