Chin (Payne) v Payne

[2022] NZHC 3284

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2021-485-000350

[2022] NZHC 3284

BETWEEN

SANDRA CHIN (PAYNE)

Plaintiff

AND

STEVEN PAYNE as the executor of the estate of Donald Gordon Payne

First Defendant

AND

STEVEN PAYNE

Second Defendant

Hearing:

6 December 2022

Appearances:

P R W Chisnall and D P MacKenzie for the Plaintiff G E Sleven for the First Defendant

B J J Sheehan and S D Balloch for the Second Defendant

Judgment:

14 December 2022

DECISION OF GENDALL J

[1] On 24 November 2022 I gave a judgment in this proceeding and at paragraphs

[114] – [116] addressed the issue of costs. As to costs, I granted category 3(c) scale costs to the largely successful plaintiff, together with reasonable disbursements all as approved by the registrar, with such costs and disbursements to be met by the estate of Donald Gordon Payne.

[2]        On 2 December 2022 counsel for the first defendant and the second defendant filed a joint memorandum seeking re-call of my 24 November 2022 decision relating in particular to this award of costs.

SANDRA CHIN (PAYNE) v STEVEN PAYNE as the executor of the estate of Donald Gordon Payne [2022] NZHC 3284 [7 December 2022]

[3]        In  response,  counsel  for  the  plaintiff   has  filed  a  memorandum   dated   5 December 2022 opposing the request for re-call.

[4]        Although a request to re-call a judgment is often made by formal interlocutory application, as a minimum often a formal memorandum requesting re-call will on occasions suffice. I accept the joint memorandum filed on behalf of the first and second defendants is acceptable here.

[5]        So far as any application for re-call is concerned, Rule 11.9 of the High Court Rules 2016 addresses this. The  leading  statement  on  re-call  of  judgments  in  New Zealand remains that of Wild CJ in Horowhenua County v Nash (No 2)1:

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 re-called –- the first, where since the hearing there has been an amendment to a relevant statute or regulation, or a new judicial decision of relevance at 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 re-called.

[6]        Here, it is apparent the application by the first and second defendants can only fall within the third limb noted above, requiring that “some other very special reason” exist.

[7]On that aspect, Asher J in Faloon v CIR (Commissioner of Inland Revenue)2

said:

While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to re-call must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things that it can be said the power to re-call does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party re-casting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments that could have been raised at the earlier hearing but were not.

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

2      Faloon v CIR (Commissioner of Inland Revenue) (2006) 22 NZTC 19,832 (HC) at [13].

[8]        Relating to this, the Court of Appeal noted in Erwood v Maxted3repeated the principle that applications which merely seek to re-litigate matters already considered, or to challenge substantive findings of fact and law, are not to be entertained.

[9]        Here, the defendants appear to contend in their memorandum that they did not have an opportunity to consider and make submissions  on the issue of  costs.  As  Mr Chisnall, counsel for the plaintiff, in his 5 December 2022 memorandum at paragraph [8] notes: “That is simply not so”.

[10]      Mr Chisnall, goes on to contend that this application by the defendants for re-call is in fact a misuse of the third category noted above in the decision in Horowhenua County v Nash (No 2)4. He says that in reality the defendants here are seeking to re-litigate matters that were at issue in the hearing before me and to challenge substantive findings that were made. To a large extent I agree.

[11]      What is clear, too, is that in her second amended statement of claim the plaintiff specifically sought costs under each of her causes of action and also in closing submissions from her counsel she sought that full costs be paid to her out of the estate.

[12]      In any event, as I see the position, clearly the plaintiff, in succeeding in her major claim against the defendants here, was entitled to a significant award of costs on this proceeding, and it is appropriate these costs be paid from the not insubstantial assets of the estate which largely remain to be inherited by the second defendant and his family.

[13]      Any remedy available to the first defendant and the second defendant, if dissatisfied with the 24 November 2022 judgment, is to seek this by way of an appeal to the Court of Appeal.

[14]      The request/application by the first  and  second  defendant  to  re-call  my  24 November 2022 decision is dismissed.

3      Erwood v Maxted [2010] NZCA 93 at [23]

4      Above at n 1.

[15]      Although counsel for the plaintiff requests that an order for costs should be made against the defendants on this re-call application, in all the circumstances here I decline this request. The members of this Payne family need to move forward.

Gendall J

Solicitors:

Paul Chisnall Barrister and Duncan Mackenzie for the Plaintiff Grant Slevin Barrister for the First Defendant

A R L Lawyers for the Second Defendant