Wen v Quian

[2022] NZHC 2144

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2022-404-634

[2022] NZHC 2144

UNDER

Land Transfer Act 2017

IN THE MATTER

of an application to remove caveat no. 12044428.1 pursuant to s 142 of the Land Transfer Act 2017

BETWEEN

YU WEN

Applicant

AND

DONG QIAN

Respondent

Hearing:

On the papers

Counsel:

T D Rea for applicant

J P Nolen for respondent

Date of judgment:

26 August 2022

JUDGMENT OF JAGOSE J

[Recall]

This judgment was delivered by me on 26 August 2022 at 2.00pm.

Pursuant to Rule 11.5 of the High Court Rules.

…………………………

Registrar/Deputy Registrar

Counsel/Solicitors:

G P Blanchard QC, Auckland T D Rea, Barrister, Auckland McVeagh Fleming, Auckland K3 Legal, Auckland

WEN v QIAN - Recall [2022] NZHC 2144 [26 August 2022]

[1]    My 23 August judgment awarded Mr Qian 2B costs,1 on his success in resisting Mr Wen’s application for removal of a caveat.2 Mr Wen now seeks my judgment’s recall, on grounds I misapprehended his submissions and failed to determine a matter properly put by him for my decision. Mr Qian abides my decision.

[2]    The essence of Mr Wen’s recall application is, despite weeks of pre-commencement correspondence with Mr Qian, Mr Wen was not apprised of the factual underpinning for Mr Qian’s successful opposition and Mr Qian’s costs therefore should have been reduced. My judgment’s rejection of Mr Wen’s submission, focused on conduct in the associated substantive proceeding, thus failed to address the point.

[3]    Recall is available on constrained grounds: since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; or for some other very special reason justice requires the judgment be recalled.3 A judgment only may be recalled before the orders it embodies are sealed,4 and then only on those constrained grounds.

[4]    As a limited recourse in-road to final judgments, these are high thresholds. Once a court has made an order, there is a significant policy reason for requiring the order to stand as conclusive, unless overturned on such challenge as may be available to affected parties. That reason is the principle of finality in litigation. It is not          a principle of absolute finality, because it “accommodates exceptional situations by allowing final determinations to be revisited but within prescribed limits”.5 Rather than recall to address omissions, substantive errors in that finding, application or reasoning may be susceptible to challenge. If not, or until successful challenge, the orders stand.

1      Wen  v Qian [2022] NZHC 2099 at [4]. My judgment referred at its n 2 to “High Court Rules, r 14.7(1)(b)”, meaning r 14.2(1)(b). It will re-issue to correct that slip: r 11.10.

2      Wen v Qian [2022] NZHC 1586 at [25].

3      Uhrle v R [2020] NZSC 62, [2020] 1 NZLR 286 at [22]–[25], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

4      High Court Rules, r 11.9.

5      Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804 at [28].

[5]    Although the particular grounds relied on by Mr Wen elsewhere have been founded in the third limb,6 that is not to elevate those grounds in themselves to cross the third limb’s threshold. The judgment at issue here was a costs decision, driven by principle.7 Andrew AJ concluded Mr Wen’s pre-commencement efforts to accommodate Mr Qian’s concerns had not addressed Mr Qian’s “legitimate interests” in the caveat’s retention.8 Thus they were immaterial to costs here. Other matters between the men concerned the substantive proceeding, also irrelevant to costs here.

[6]    Further, any reduction in costs  required  specific  demonstration,  here,  of Mr Qian’s unnecessary contribution to the time and expense of the proceeding or step in it.9 Mr Wen’s costs submissions did not do so but rather sought retrospectively to incentivise constructive pre-commencement conduct between prospective litigants. He contended for a counterfactual in which “the [caveat] application could have been discontinued at that stage, once the new allegations and evidence were known, but    a decision was made to proceed, in light of the costs which had already been incurred”. Thus Mr Qian’s conduct did not contribute to the time and expense of the proceeding.

[7]    I do not accept there is any “very special reason” in justice for recall of my judgment, still less I either misapprehended Mr Wen’s submission or failed to address his submissions. Instead, my determination of costs was “predictable and expeditious”.10 Mr Wen’s dissatisfaction with it provides no grounds for recall.11

[8]Mr Wen’s application to recall my 22 August 2022 judgment is declined.

—Jagose J

6      Mr Wen cites Cynotech Securities Ltd v People Ltd (No 2) HC Auckland CIV-2008-404-1559, 4 March 2009; Routhan v PGG Wrightson Real Estate Ltd [2020] NZHC 702; Unison Networks Ltd v Commerce Commission [2007] NZCA 49 at [34]; and Brake v Boote (1991) 4 PRNZ 86 (HC).

7      High Court Rules, r 14.2(1).

8      Wen v Qian, above n 2, at [22].

9      High Court Rules, r 14.7(f).

10     Rule 14.2(1)(g).

11     Ding v James [2022] NZSC 58 at [7], citing Biddle v R [2021] NZSC 129 at [4]; and Foster v R

[2021] NZSC 130 at [4].