Wagg v Squally Cove Forestry Partnership

IN THE COURT OF APPEAL OF NEW ZEALAND

CA747/2012
[2013] NZCA 612

BETWEEN

ASHLEY JOHN WAGG

DONALD MURRAY MUIR, MURIEL CHRISTINE MUIR AND GUY ROBERT MORLEY MORTLOCK

JOHN MATTHEW ZWART, TERRESSA LEE ZWART AND FLETCHER VAUTIER MOORE TRUSTEES LIMITED

SUSAN DAWN REWCASTLE, ROSS HANNAY MCKECHNIE AND HUNTER RALFE TRUSTEES LIMITED

ROBYN SHIRLEY PRICE, BRODIE JANE PLUM AND REBECCA ANNE PLUM

NIGEL BRYANT, ELIZABETH HANNAH BRYANT AND LINDA GAIL MILLER

VIN MORRIS PARKINS, GRANT TREVOR PARKINS AND REECE DARREN PARKINS

DUANE ANDREW WHITING AND AMANDA JOANNE WHITING

BRUCE DOUGLAS HOLLYMAN AND CAROL JOY HOLLYMAN

JEREMY MICHAEL FOLEY
Applicants

AND

SQUALLY COVE FORESTRY PARTNERSHIP
Respondent

Court:

Ellen France, White and French JJ

Counsel:

J M Fitchett and R D J Fitchett for Applicants
L J Taylor QC and G M Richards for Respondent

Judgment:

(On the papers)

4 December 2013 at 11.30 am

JUDGMENT OF THE COURT

AThe application for recall is dismissed.
BThe applicants must pay the respondent’s costs calculated as for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

On 4 October 2013, this Court allowed Squally Cove Forestry Partnership’s appeal against a decision of the High Court.[1] The proceedings concerned landlocked property owned by the first respondents to the appeal, who wanted access over a road on Squally Cove’s land. One of the key issues was whether Squally Cove’s offer of alternative access to them was reasonable. Contrary to the finding in the High Court, this Court held that it was reasonable and that the first respondents were not entitled to the remedy the High Court had granted them under s 327 of the Property Law Act 2007.
[1]Squally Cove Forestry Partnership v Wagg [2013] NZCA 463.
The Court ordered that the first respondents pay Squally Cove costs on the appeal. It also made an order in the following terms regarding costs in the High Court:
Costs in the High Court should be determined in accordance with this judgment. If an award of costs has been made in the High Court, we set it aside so that costs can be redetermined in accordance with this judgment.
On 9 October 2013, the first respondents (excluding Clinton John McInnes and Phillipa Jane McInnes) applied for an order recalling the judgment.
By that time, the judgment had been sealed. The sealing of a judgment usually precludes a recall application. However in this case we consider there are exceptional circumstances that warrant our considering the application on its merits.[2] The exceptional circumstances are that before the judgment was sealed, counsel for the applicants had written to the Court advising of his intention to file a recall application and asking for the judgment not to be sealed in the meantime. Unfortunately, this letter was overlooked and the judgment was sealed.
[2]The existence of a residual discretion to entertain a recall application of a sealed judgment was confirmed in Taylor v Lawrence [2003] QB 528 (CA), cited with approval in Rabson v Gallagher [2012] NZCA 237.
Having received submissions from the parties, we are also satisfied that the application can be adequately and fairly dealt with on the papers.[3]
[3]See Court of Appeal (Civil) Rules 2005, r 51(6).
The application relates solely to the order that costs in the High Court should be determined in accordance with this Court’s judgment.[4] The applicants refer to evidence that Squally Cove’s offer of alternative access was improved or ameliorated in several aspects during the course of the High Court hearing. It is submitted that this should have been taken into account in determining any costs award and that this Court’s failure to address the timeline of amelioration together with the amount at stake constitutes a “very special reason” requiring recall in the interests of justice.[5]
[4]The notice of application appeared to suggest a second ground for recall, namely that the Court had failed to consider a matter bearing on the finding that Squally Cove’s offer was reasonable. However subsequent submissions make it clear that the application is restricted to the costs order.
[5]See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
It is correct that our judgment does not address the timing of changes to the offer in the context of costs in the High Court. However, in our view this is an appeal point, not grounds for a recall application.
We would add that even if we were minded to grant the recall application and consider the matter afresh, the outcome would still be the same. The evidence and the approach taken by the applicants towards the appeal satisfy us that even if Squally Cove’s offer had been in its amended form from the outset, the applicants would still not have accepted it.
The application for recall is accordingly dismissed.
The applicants must pay the respondent’s costs calculated as for a standard application on a band A basis together with usual disbursements.

Solicitors:
Rout Milner Fitchett, Nelson for Applicants
McFadden McMeeken Phillips, Nelson for Respondent

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered an application for recall in the case of Wagg v Squally Cove Forestry Partnership. The applicants, who were the first respondents to the appeal, sought to recall the judgment that had been given on 4 October 2013, which allowed the respondent’s appeal against a decision of the High Court. The applicants argued that the judgment should be recalled because the Court had failed to consider the timeline of changes to an offer of alternative access, which was relevant to the costs order in the High Court. The Court of Appeal dismissed the application for recall, holding that the failure to address the timeline of changes to the offer was an appeal point, not grounds for a recall application.

The applicants argued that the Court of Appeal had made an error in not considering the timing of changes to the offer of alternative access when determining the costs in the High Court. They submitted that the changes to the offer were relevant to the costs order and that the Court’s failure to address this constituted a “very special reason” requiring recall in the interests of justice. The applicants also submitted that the Court had failed to consider a matter bearing on the finding that the offer was reasonable, but this was later clarified to be restricted to the costs order.

The Court of Appeal dismissed the application for recall, holding that the failure to address the timing of changes to the offer was an appeal point, not grounds for a recall application. The Court held that even if it were minded to grant the recall application and consider the matter afresh, the outcome would still be the same. The evidence and the approach taken by the applicants towards the appeal satisfied the Court that even if the offer had been in its amended form from the outset, the applicants would still not have accepted it. The Court of Appeal concluded that there were no exceptional circumstances that warranted recalling the judgment. The applicants were ordered to pay the respondent’s costs calculated as for a standard application on a band A basis together with usual disbursements.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established