Wagg v Squally Cove Forestry Partnership
[2013] NZCA 612
•4 December 2013 at 11.30 am
| 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 |
| AND | SQUALLY COVE FORESTRY PARTNERSHIP |
| Court: | Ellen France, White and French JJ |
Counsel: | J M Fitchett and R D J Fitchett for Applicants |
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.
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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
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