BLD v ALD

[2014] NZHC 1030

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004549 [2014] NZHC 1030

BETWEEN

BLD

Appellant

AND

ALD Respondent

Judgment:                16 May 2014

JUDGMENT OF GENDALL J (Dealt with on the papers)

[1]      Following a hearing on 18 March 2014 of an appeal and cross-appeal against a judgment of the Family Court delivered on 24 September 2013 I gave a judgment in this proceeding on 26 March 2014.

[2]      The respondent has now filed a memorandum in this Court dated 28 April

2014 seeking a partial recall of that judgment.

[3]      That recall appears to relate to four aspects of that judgment and the stated grounds advanced for recall are:

(a)       That I erred on 26 March 2014 in certain decisions made in that judgment; and

(b)      I erred in fact and law.

[4]      The specific decisions referred to are: (a)         The $750 costs award;

(b)      The $5000 chattels payment;

BLD v ALD [2014] NZHC 1030 [16 May 2014]

(c)      The loans to Extent Marketing Limited; and

(d)      The dismissal of my cross appeal.

[5]      Rule 11.9 High Court Rules deals with recall of a judgment and states:

11.9      Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[6]      As McGechan on Procedure at para 11.9.01 notes, despite the unfettered discretion given by r 11.9, it is a serious step to be taken by a Court in recalling its judgment on a matter, this step to be taken only in reasonably well identified situations.

[7]      The leading statement on recall remains that of Wild CJ in Horowhenua

County v Nash (No 2)1 where it is stated:

Generally speaking,  a judgment  once  delivered  must  stand for  better  or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled — first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[8]      I have carefully read the detailed six page memorandum from the respondent dated 28 April 2014 seeking partial recall of my judgment here.  In terms of the three categories of cases which might justify recall as outlined in Horowhenua County v Nash, I am satisfied here that none of these properly apply in the present case.

[9]      I noted at para [29] and elsewhere in my 26 March 2014 judgment, that this entire matter related to what was not necessarily an unusual or complex property dispute between the parties.  This dispute had followed their separation some seven years  ago,  but  nevertheless  their  conflict  on  almost  every  matter  had  a  long

acrimonious and unnecessarily convoluted history.  The parties had been married for

1      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

nearly 23 years, and as I commented at para [65] of my earlier judgment, the fact that their property issues on what were not overly complex matters were not resolved at this point, was more than a little surprising and entirely regrettable.

[10]     As I see the position, the present application by the respondent for partial recall of my judgment (on which the appellant has provided no response) might well be seen arguably as simply a further attempt to once again prolong this whole matter.

[11]     The present case is not one in my view where recall of the 26 March 2014 judgment is warranted.   I am satisfied that all relevant appeal matters were appropriately dealt with in that judgment, and that this is not one of those situations where exceptional circumstances exist such that the interests of justice require this Court to revisit that decision.

[12]     The respondent’s application for recall of my 26 March 2014 judgment is

dismissed.

...................................................

Gendall J

Solicitors:

Lynda Kearns, Auckland

Copy to Respondent