Worldwide NZ LLC and anor v QPAM Ltd and anor [2007] NZCA 81 (20 March 2007)

Last Updated: 29 March 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA122/06
[2007] NZCA 81

BETWEEN WORLDWIDE NZ LLC
First Appellant

AND JOHN JAMES GOSNEY
Second Appellant

AND QPAM LTD
First Respondent

AND JACOBSEN VENUE MANAGEMENT NEW ZEALAND LIMITED
Second Respondent

Hearing: 21 August 2006

Court: Glazebrook, O'Regan and Arnold JJ

Counsel: M J Fisher for Appellants
P F A Woodhouse QC and A J Thorn for First Respondent
C P Browne and J Carlyon for Second Respondent

Judgment: 20 March 2007 at 11 am

JUDGMENT OF THE COURT ON APPLICATION TO RECALL JUDGMENT OF 10 NOVEMBER 2006

We dismiss the appellant’s application.

REASONS OF THE COURT

(Given by O’Regan J)

[1]	The first appellant, Worldwide, has applied for an order recalling this Court’s judgment in relation to appeal CA122/06, which was issued on 10 November 2006 ("the judgment"). The judgment has not been sealed.
[2]	The grounds for the application relate to the costs award in paragraph B of the judgment which ordered Worldwide, as the unsuccessful appellant, to pay to each respondent costs of $6,000. Worldwide seeks costs in this Court of $6,000 (or, in the alternative, an order that costs lie where they fall) and an order directing the High Court to review the award of costs in that Court. It argues that its position is improved (when compared to its position under the High Court judgment) as a result of this Court’s decision and the undertaking given to this Court by the second respondent, Jacobsen, to which reference is made in [36] and [37] of the judgment.
[3]	The Court registry staff have issued under seal a notice of the outcome of the judgment under r 50 of the Court of Appeal (Civil) Rules 2005, but the judgment has not been sealed as contemplated by r 51 of those rules. We propose to consider the application for recall on the basis that the judgment of 11 December 2006 has not been perfected. The test for determining whether an unperfected judgment should be recalled was set out by Wild CJ in Horowhenua County v Nash (No 2) [1968] NZLR 632. That test was approved by this Court in Rainbow Corporation Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493. The ground relied on in this case is that "for some very special reason, justice requires that the judgment be recalled".
[4]	We do not propose to convene a hearing in relation to this application. Rule 51(6) of the Court of Appeal (Civil) Rules 2005 makes it clear that there is no right to be heard in relation to applications to recall or reopen judgments. Although counsel asked to be heard, we do not consider that necessary in this case.
[5]	The award of costs in the substantive appeal was made on the basis that Worldwide’s appeal failed and was dismissed. It sought an injunction and that was refused in this Court as it had been in the High Court. We are satisfied that the differences between the reasoning of the High Court and this Court do not justify any departure from the normal principle that costs are awarded against an unsuccessful appellant in this Court. Nor are we persuaded that any review of the costs award in the High Court is called for.
[6]	In our view, this case does not come anywhere near constituting "a very special reason" justifying the recall of the judgment.
[7]	We therefore dismiss the appellant’s application.

Solicitors:
Brookfields, Auckland for Appellants
Stewart Germann Law Office, for First Respondent
Wilson Harle, Auckland for Second Respondent