TSB Bank Ltd v Burgess

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.