McNamara and McNamara as Trustees of the P H McNamara Family Trust v Auckland City Council [2010] NZCA 553 (25 November 2010)

Last Updated: 30 November 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA457/2009 [2010] NZCA 553

BETWEEN PETER HARDIE MCNAMARA AND PATRICK STURGEON MCNAMARA AS TRUSTEES OF THE P H MCNAMARA FAMILY TRUST
Applicants

AND AUCKLAND CITY COUNCIL
Respondent

Court: Hammond, Chambers and Arnold JJ

Counsel: B O'Callahan and G S G Erskine for Applicants

D J Goddard QC and M A Cavanaugh for Respondent

Judgment: 25 November 2010 at 10 am

(On the papers)

JUDGMENT OF THE COURT

A The application for recall is dismissed.

2. The respondent will have costs calculated as on a standard application for leave to appeal, Band A, and usual disbursements. We do not certify for second counsel.
   

REASONS OF THE COURT
(Given by Hammond J)

[1] This litigation arose between the Auckland City Council as territorial authority and the purchasers of an Auckland property. After leaks appeared, the purchasers repaired the property and sought to recover the loss incurred from the Council. Issues arose between the parties as to a Land Information Memorandum and the certification of the building and the Code Compliance Certificate.
[2] The City Council applied for the proceeding to be struck out, or alternatively, for defendant’s summary judgment. The Council’s applications were dismissed.
[3] The Council then appealed. In a judgment delivered on 3 August 2010 this Court held that the Council as territorial authority did not owe a duty of care to the purchasers. Summary judgment was entered in favour of the Council.[1]
[4] The purchasers then took two steps. First, on 11 August 2010 they sought recall of that judgment. Second, on 31 August 2010 they lodged an application for leave to appeal to the Supreme Court of New Zealand.[2] The Supreme Court has not yet dealt with the leave application because of delays which have intruded with respect to the disposition of the recall application.

The recall application

[5] There has been a measure of delay in dealing with the recall application. This is primarily because Baragwanath J, who wrote the decision of this Court on the appeal, retired. Consideration then had to be given to whether this application could be dealt with by the other two Judges on the then panel. It was necessary to hear further from counsel on that.
[6] In the result, a fresh judge, Chambers J, has been added to the panel and there have been conferences with counsel to clarify exactly what is in issue. Counsel are agreed that the application can be dealt with on the papers. That is a course authorised by the Court of Appeal (Civil) Rules 2005.[3]

The basis for the recall application

[7] Paragraph [27] of the judgment provides:

No doubt the case could be different if a council well knew that a certifier was issuing certificates which it had no right to do. The purpose of the notification under s 57 would have been served and the territorial authority might be expected to set about performing the obligations cast upon it by that section. But that scenario is not suggested in this case.

[8] The proposition which is put forward by Mr O’Callahan is as follows:

The grounds for recall are that the last sentence above is incorrect and the appellant homeowners did allege, and maintained on the appeal, that the respondent council knew that the certifier, ABC, had issued a certificate outside its authority.

[9] By way of response Mr Goddard QC responded in his written submissions (repeated to Hammond J in a subsequent telephone conference) that it was his client’s case that it was not advanced on the basis of actual knowledge on the part of the Council.
[10] Mr O’Callahan then responded to that proposition that the applicants were alleging actual knowledge on the basis that it is permissible to aggregate the knowledge held by an organisation, in appropriate circumstances.[4]
[11] In fairness to counsel, the difficulty arises out of the words “well knew” in the first sentence of [27] of the judgment of this Court. In the simplest terms, what kind, and perhaps degree of knowledge, did the Council have to have?
[12] That said, we are not persuaded that this is a case for recall.[5] We think it is a case for an appeal point, if such is appropriate. We are fortified in that view by the consideration that if we were to recall the judgment it is not a relatively straightforward matter of correction or further explication; the appeal would have to be reheard in its entirety. In short, in our view no material matter was left unresolved by the judgment of the Court delivered by Baragwanath J.
[13] The application for recall will therefore be dismissed. The respondent will have costs calculated as on a standard application for leave to appeal Band A, that being the nearest analogy, and usual disbursements.

Correction of the judgment

[14] When the purchasers filed their recall application, Mr Goddard (no doubt as a matter of convenience) filed a memorandum seeking a correction to [10] of the judgment. It is said to have slightly misstated the chain of events leading to the appeal. These were distinctly convoluted. So far as we can discern, nothing turns on the point; Mr Goddard proposed a specific amendment which would cure the deficiency (if any) and Mr O’Callahan did not oppose the slight recasting. If necessary this is something that can be attended to on the appeal to the Supreme Court, if leave is granted.

Solicitors:
Carter & Partners, Auckland for Applicants
Heaney & Co, Auckland for Respondent

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[1] Auckland City Council v McNamara [2010] NZCA 345, [2010] 3 NZLR 848.
[2] McNamara v Auckland City Council SC85/2010.

[3] Rule 51(6) provides that there is no obligation to have an oral hearing for a recall/reopening application, even where opposed.

[4] See The Bell Group Ltd (in liq) v Westpac Banking Corporation (No 9) [2008] WASC 239, (2008) 225 FLR 1 and the authorities therein referred to.

[5] The principles relating to recalls are restated in Erwood v Maxted [2010] NZCA 93.