BRUCE YOUNG v STEEN VILHELM HANSEN [2003] NZCA 307 (19 December 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA240/02

BETWEEN BRUCE YOUNG

First Appellant

AND BETWEEN SLADDEN COCHRANE & CO

Second Appellant

AND STEEN VILHELM HANSEN

Respondent

Hearing: 17 July 2003

Coram: Keith J

Fisher J

Heath J

Appearances: M G Ring and P Courtney for Appellants

J B Stevenson and R K P Stewart for Respondent

Judgment: 19 December 2003     

JUDGMENT (NO. 2) OF THE COURT DELIVERED BY HEATH J

Introduction

[1] On 16 September 2003 we allowed an appeal against a High Court judgment entered in favour of Mr Hansen.In consequence, judgment was entered in favour of the Appellants in the High Court.Costs were also awarded in favour of the Appellants.

[2] Unbeknown to us at the time the appeal was heard, the parties had made arrangements for payment of part of the judgment sum pending the appeal.An issue has now arisen as to whether this Court ought to award interest on that part of the judgment sum which must now be repaid by Mr Hansen to the Appellants.

[3] To enable the Court to consider this issue applications has been made for an order recalling the judgment.In a memorandum filed on behalf of Mr Hansen, Mr Stewart informs the Court that Mr Hansen does not oppose the application so that a ruling can be given on the question of interest.He does, however, submit that costs should lie where they fall.

[4] The parties agree that we can deal with the application for recall on the papers.

The application

[5] The same principles apply on an application for recall to this Court as apply in the High Court: generally, see Horowhenua County v Nash (No. 2) [1968] NZLR 632 at 633.As the Respondent does not oppose our hearing the application we are content to assume, without deciding the point, that we can recall judgment to rule on an issue which ought to have been raised before us at the appeal hearing but, for whatever reason, was not drawn to our attention until after judgment was given.

[6] Jurisdiction to make an order for interest stems from r 22 of the Court of Appeal (Civil) Rules 1997 (the Rules).Rule 22 provides:

22Repayment of judgment sum and interest

(1)If an appellant has, in accordance with a judgment of a Court below, paid a judgment debt and any interest payable on that debt, and the appellant successfully appeals from that judgment, the Court of Appeal may make the orders referred to in subclause (2).

(2)The Court may make such orders, as may seem just in its discretion, concerning—

(a)The repayment of the amount paid by the appellant; and

(b)The payment of interest to the appellant on the amount paid by the appellant under the judgment during the period commencing on the date of the payment and ending with the date of the repayment.

[7] The material before us establishes that the sum of $675,870.96 was paid to Mr Hansen on 29 November 2002.He has had use of that money in the meantime.There was no contractual agreement for payment of interest.However, the payment to Mr Hansen was made against the backdrop of the Rules, particularly r 22.In those circumstances, we can see no reason why interest should not be awarded on repayment of that sum under r 22(2)(b) of the Rules.

Result

[8] The application for recall is granted.In addition to the orders set out in our judgment of 16 September 2003 (which are confirmed) we order that Mr Hansen pay interest to the Appellants on the sum of $675,870.96 from 29 November 2002 to the date of repayment.

[9] As the Appellants did not raise this issue with us at the hearing of the appeal, we make no order as to costs on the application for recall.

Solicitors:

McElroys for Appellant

Izard Weston for Respondent