King v Norfolk Nominees Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA536/2014
[2019] NZCA 577

BETWEEN	PAUL ANTHONY KING Applicant
AND	NORFOLK NOMINEES LIMITED Respondent

Court:	Kós P, Brown and Clifford JJ
Counsel:	Applicant in person B A Vautier for Respondent
Judgment: (On the papers)	21 November 2019 at 10 am

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Clifford J)

On 16 October 2019, we struck out this appeal for want of prosecution.[1] Mr King now applies for recall of that judgment on the basis that it incorrectly recorded that he was adjudicated bankrupt to Norfolk Nominees Ltd, when the relevant company was in fact Norfolk Financial Management Ltd. Mr King suggests the intituling consequently identified the incorrect respondent.
[1]King v Norfolk Nominees Ltd [2019] NZCA 494.
This is not the first time the question of the correct respondent has arisen. In his notice of appeal, Mr King originally named Norfolk Financial Management Ltd as the respondent. In 2015, in a judgment dismissing Mr King’s application for a review of the Registrar’s decision on security for costs, Stevens J determined that was not the correct respondent, and ordered that Norfolk Nominees Ltd be substituted:[2]
[2] The notice of appeal listed Norfolk Financial Management Ltd as the respondent. Counsel for the respondent has filed a memorandum dated 6 November 2014 explaining that Norfolk Financial Management Ltd is not the correct party to the appeal. Its debt has now been satisfied. There is however a costs order of $43,405.53 owing to Norfolk Nominees Ltd. That company (referred to here as Norfolk) was substituted as creditor in the High Court and has since taken over as creditor in the bankruptcy proceedings. Mr King still owes Norfolk this sum for costs. Norfolk is therefore substituted as the correct respondent in this Court.
[2]King v Norfolk Nominees Ltd [2015] NZCA 16 (footnotes omitted). See also Norfolk Financial Management Ltd v King HC Christchurch CIV-2013-409-1192, 11 November 2014 (Minute of Associate Judge Matthews).
As the Judge recorded, the confusion as to the correct respondent in this Court followed an error by the Associate Judge in the High Court:[3]
Norfolk Financial Management Ltd was incorrectly listed as the applicant in the decision adjudicating Mr King bankrupt, a judgment released after the decision substituting Norfolk Nominees Ltd as creditor. This was rectified by Associate Judge Matthews in a minute, reissuing the judgment, noting the correct [applicant] in its text.
[3]At [2] n 3 (citations omitted).
We are satisfied that our judgment correctly identified Norfolk Nominees Ltd as the applicant in Mr King’s bankruptcy and the respondent in this appeal. Mr King suggests that the Associate Judge lacked the power to correct such slips, a point far removed from our judgment. In any case, we are satisfied that the Judge had the necessary power to correct his misidentification of the applicant creditor. Ironically, Mr King invites us to exercise a similar power in this application.
The criteria for recall have not been established.[4]
[4]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
The application for recall is declined.

Solicitors:
Glaister Ennor, Auckland for Respondent

CaseChat Overview and Summary

The case of King v Norfolk Nominees Limited was heard in the Court of Appeal of New Zealand, involving Paul Anthony King as the applicant and Norfolk Nominees Limited as the respondent. The case was brought before the Court of Appeal by Mr King, who sought to recall a previous judgment that had dismissed his appeal for want of prosecution. Mr King contended that the earlier judgment incorrectly identified Norfolk Nominees Limited as the creditor in his bankruptcy proceedings, arguing instead that the correct creditor was Norfolk Financial Management Ltd. The appeal arose from an initial confusion regarding the correct respondent, which had been rectified in a prior judgment.

The primary legal issue the Court of Appeal had to address was whether the earlier judgment could be recalled due to the misidentification of the creditor in the bankruptcy proceedings. Mr King argued that because the Associate Judge in the High Court had the authority to correct an error in identifying the creditor, the Court of Appeal should similarly exercise its power to rectify the misidentification in the appeal judgment. The Court had to determine whether the criteria for recalling a judgment had been met and if there was any merit in Mr King's application to recall the earlier judgment.

The Court of Appeal, comprising Kos P, Brown, and Clifford JJ, found that the earlier judgment correctly identified Norfolk Nominees Limited as the creditor in Mr King's bankruptcy and the respondent in the appeal. The Court noted that the confusion over the correct respondent had originated from an error by the Associate Judge in the High Court but had been corrected by the same Judge in a subsequent minute. Clifford J, delivering the judgment of the Court, held that the criteria for recall had not been established. The Court was satisfied that the earlier judgment had correctly identified the parties involved and that Mr King's argument regarding the Associate Judge's power to correct errors did not apply to the recall of the appeal judgment.

The Court of Appeal declined Mr King's application for recall, reaffirming the correctness of the earlier judgment. The Court held that there were no grounds to set aside the previous decision, and the appeal was dismissed.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established