Walmsley v Aitchison

IN THE COURT OF APPEAL OF NEW ZEALAND

CA412/2017
[2017] NZCA 512

BETWEEN	HEATHER WALMSLEY, DAVID CULLEN WALMSLEY AND WALMSLEY ENTERPRISES LIMITED Applicants
AND	PETER AITCHISON AND SYLVIA AITCHISON Respondents

Court:

French, Winkelmann and Brown JJ

Counsel:

D C Walmsley in person for Applicants
AFD Cameron and M J Slyfield for Respondents

Judgment:

(On the papers)

13 November 2017 at 3.30 pm

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Mr Walmsley, one of the applicants in this proceeding, has filed two memoranda dated 7 November 2017 and 9 November 2017 respectively in connection with this Court’s judgment declining leave to bring a second appeal.[1]
[1]Walmsley v Aitchison [2017] NZCA 500.
Mr Walmsley seeks to make further arguments in support of two grounds of appeal that had been proposed: that the issues in the proceeding were novel and that the respondents’ proceeding was unfair because it involved re-litigation of an issue already decided in other proceedings. We treat the memoranda as an application for recall of this Court’s judgment.[2]
[2]Mr Walmsley also seeks “comment” on the judgment. As he anticipates, this Court will not comment on its judgment.
However the material advanced by Mr Walmsley in his memoranda is an attempt to reargue points addressed in this Court’s judgment. He does not therefore make out a ground for recall in accordance with the test established in Horowhenua County v Nash (No 2).[3]
[3]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
The application for recall is declined.

Solicitors:
Brookfields, Wellington for Respondents

CaseChat Overview and Summary

Walmsley v Aitchison was heard by the Court of Appeal of New Zealand. The applicants, Heather Walmsley, David Cullen Walmsley and Walmsley Enterprises Limited, sought to appeal a decision made against them in a previous proceeding. The respondents, Peter Aitchison and Sylvia Aitchison, defended the decision. The appeal was heard by French, Winkelmann and Brown JJ.

The legal issues that the court needed to decide were whether the issues in the proceeding were novel and whether the respondents’ proceeding was unfair because it involved re-litigation of an issue already decided in other proceedings. The applicants argued that the issues were novel and that the re-litigation was unfair, while the respondents maintained that the issues had already been decided and that the proceeding was fair.

The court found that the applicants did not make out a ground for recall in accordance with the test established in Horowhenua County v Nash (No 2). The court held that the applicants were attempting to reargue points that had already been addressed in its judgment. Therefore, the application for recall was declined.

The court did not comment on its judgment and the application for recall was declined. No further orders were made.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established