Churchill Group Holdings Limited v Aral Property Holdings Limited [2010] NZCA 562 (26 November 2010)

Last Updated: 30 November 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA80/2010 [2010] NZCA 562

BETWEEN CHURCHILL GROUP HOLDINGS LIMITED
First Appellant

AND CACHINAL INVESTMENTS LIMITED
Second Appellant

AND MATAM INVESTMENTS LIMITED
Third Appellant

AND CLEVELAND INVESTMENTS LIMITED
Fourth Appellant

AND PHILIP JOSEPH FAVA
Fifth Appellant

AND ARAL PROPERTY HOLDINGS LIMITED
First Respondent

AND DAVID LEUNG
Second Respondent

Court: O'Regan P, Hammond and Chambers JJ

Counsel: P J Fava in person and for appellant companies
J G Miles QC and J D McBride for Respondents

Judgment: 26 November 2010 at 2.15 pm

(On the papers)

JUDGMENT OF THE COURT

1. The appellants must pay costs to the respondents both on the application for a stay of execution and on the recall application. The costs on each application are to be calculated as if each was a standard application for leave to appeal on a band A basis, with usual disbursements. The liability of the appellants in each case is joint and several.
2. The representation application is dismissed.
   

REASONS OF THE COURT
(Given by Hammond J)

Introduction

[1] This judgment determines certain issues which were not resolved in our judgment of 30 July 2010.[1] We also take this opportunity to address the unresolved issue of costs following this Court’s earlier judgment of 23 March 2010.[2]

Costs

[2] In both judgments costs were reserved. We have submissions from counsel and Mr Fava and the parties are agreed that issue can be dealt with on the papers.
[3] In the earlier judgment this Court declined the appellants’ application for a stay of execution of a High Court judgment. What then came before us was an application for recall of that High Court judgment. We declined that application. Subsequently, Mr Fava sought leave from the Supreme Court of New Zealand to appeal our judgment of 30 July 2010. Leave was declined and costs were awarded against him by that Court.[3]
[4] There is no reason why in this instance the usual rule should not obtain, namely that costs follow the two events in this Court. The appellants must pay costs to the respondents on the application for a stay of execution and on the recall application. The costs on each application are to be calculated as if each was a standard application for leave to appeal on a band A basis, with usual disbursements. The liability of the appellants in each case is joint and several.

The representation application

[5] After the hearing of the recall application before this Court on 30 July 2010, Mr Fava filed something he termed a “representation application”. It is dated 22 July 2010. By that application Mr Fava again sought to attack the conduct of Mr Simpson. By the Minute of Hammond J dated 4 November 2010 Mr Fava was invited to advise the Court as to the jurisdictional basis on which that application had been made.
[6] Mr Fava filed a memorandum dated 8 November 2010. That memorandum appears to rely on two bases for the application.
[7] First, r 5(1) Court of Appeal (Civil) Rules 2005. That is an enabling rule allowing the Court to give directions as to the conduct of a proceeding. It affords no basis for the jurisdiction asserted by Mr Fava.
[8] Second, Mr Fava relies on “the inherent jurisdiction of the Court, to control its own processes”. As to this Court’s “inherent jurisdiction”, it is perhaps more correct to speak of its “inherent powers”, given that this Court is a creature of statute. The Chief Justice discussed the nature of this Court’s inherent powers to control its own processes in R v Smith.[4] Although that case concerned the Court’s jurisdiction to reopen decided matters, the Chief Justice impliedly adopts as the underlying principle that the powers are “available in exceptional circumstances in order to maintain the integrity of the court[’s] processes” (citing Kirby J (dissenting) in DJL v Central Authority[5]). It is conceivable that it might be necessary to rely on such powers in rare and exceptional cases where counsel’s objectivity and independence is compromised.
[9] But any such jurisdiction is certainly not appropriate to the instant occasion. Here Mr Fava has continued to attack, collaterally, the position of Mr Simpson. He simply invites us to go back over old ground and moreover ground which had nothing to do with the recall application.
[10] That application is dismissed. In so doing, we do not wish to be taken as indicating that the application was properly brought; simply that we see no merit in it.

Solicitors:
Bell Gully, Auckland, for Respondents

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[1] Churchill Group Holdings Ltd & Ors v Aral Property Holdings Ltd & Anor [2010] NZCA 335.
[2] Churchill Group Holdings Ltd v Aral Property Holdings Ltd [2010] NZCA 88.
[3] Churchill Group Holdings Ltd & Ors v Aral Property Holdings Ltd & Anor [2010] NZSC 131.
[4] R v Smith [2003] 3 NZLR 617 (CA) at [28]–[37].
[5] DJL v Central Authority [2000] HCA 17; (2000) 170 ALR 659 (HCA).