Rabson v Gallagher [2012] NZCA 237 (11 June 2012)

Court of Appeal of New Zealand

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Rabson v Gallagher [2012] NZCA 237 (11 June 2012)

Last Updated: 21 June 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA507/2010 CA726/2010 [2012] NZCA 237

BETWEEN MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST Appellant

AND LINDA GALLAGHER First Respondent

AND MALCOLM EDWARD RABSON Second Respondent

AND WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER-RABSON FAMILY TRUST Third Respondent

CA524/2010

AND BETWEEN LINDA GALLAGHER Appellant

AND MALCOLM EDWARD RABSON First Respondent

AND MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMLY TRUST Second Respondent

AND WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER-RABSON FAMILY TRUST Third Respondent

CA725/2010

AND BETWEEN MALCOLM EDWARD RABSON AS TRUSTEE OF THE MALCOLM RABSON FAMILY TRUST Appellant

AND LINDA GALLAGHER First Respondent

AND MALCOLM EDWARD RABSON Second Respondent

AND WAYNE SEYMOUR CHAPMAN AS TRUSTEE OF THE GALLAGHER-RABSON FAMILY TRUST Third Respondent

Court: O'Regan P, Glazebrook and Ellen France JJ

Counsel: M E Rabson in person N Levy and C A J Fewkes for Ms Gallagher B Balderstone for the Trustee of the Gallagher-Rabson Family Trust

Judgment: 15 September 2011 Judgment: 20 December 2011 Recall Judgment: 11 June 2012 at 3 pm

JUDGMENT OF THE COURT

The application for recall is dismissed.

_______________________________________________________________

REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] Mr Rabson has applied for the recall of this Court’s judgment dealing with relationship property and associated issues that have arisen between him, and his former partner, Ms Gallagher.[1]

Process

[2] The Court has recently set out the process to be followed where an application for recall has been made.[2] In Erwood v Maxted, the Court indicated that it would deal with such applications without a hearing and would give only brief reasons. It made it clear that the other party was not required to respond to the application unless asked to do so. We are satisfied in the present case that the application can be dealt with on the basis of the material submitted by Mr Rabson and that it is not necessary to seek submissions from Ms Gallagher.

Perfected judgment

[3] Normally a judgment is amenable to being recalled only if it has not been perfected. In the present case both the September judgment and the December judgment have been perfected, because they have been sealed in accordance with r 51 of the Court of Appeal (Civil) Rules 2005. So neither can be recalled.[3] That is sufficient to dispose of the application but for Mr Rabson’s benefit we will outline why we would not have recalled the judgments even if that impediment had not been present. These reasons also establish why there is no basis for reopening of the judgments either.

Test for recall

[4] The test for recall of civil judgments was recently restated by this Court in Erwood v Maxted [2010] NZCA 93 in these terms:

[3] ...The grounds upon which a judgment may be recalled are strictly limited. The leading statement in New Zealand as to recall of judgments is that of Wild CJ in Horowhenua County v Nash (No 2):[4]

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled - first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority: secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[4] That statement was most recently re-affirmed by the Court of Appeal in Unison Networks Ltd v Commerce Commission.[5] In Ngahuia Reihana Whanau Trust v Flight,[6] Anderson P said at [3]:

It is becoming a matter of concern not just to this Court but to others in the western common law system that disaffected litigants, usually appearing in person, repeatedly make application for recall of judgments which they steadfastly refuse to accept. It is timely to characterise plainly unmeritorious applications of that sort as an abuse of the Court’s process and to reaffirm the rarity of legal justification for recalling judgments.

[5] Similarly in Faloon v Commissioner of Inland Revenue, at [13]:[7]

While the third category is not defined with particularity in the judgments, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things that it can be said the power to recall does not extend to. It does not extend to a challenge of any substantive findings of fact and law in the judgment. It does not extend to a party recasting arguments previously given, and re-presenting them in a new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.

[5] This application exhibits the characteristics highlighted in the previous paragraph.

Renovation costs

[6] Mr Rabson’s first ground for recall is that the Court was wrong to say at [24] of the December judgment that Mr Rabson had not substantiated his claim for renovation costs in the High Court or this Court. He says the transcript of the hearing indicates otherwise, but does not identify where that contrary indication appears in the transcript.
[7] We consider that the observations in the September judgment at [77]–[82] and those of Wild J in his July judgment in the High Court[8] at [97]–[98] and in Wild J’s minute of 1 October 2010 at [7] fully justified the claim by Mr Rabson’s counsel at the hearing that there was insufficient evidence on the renovation costs claim for this Court to resolve it. His counsel repeated this statement a number of times, and suggested the case would need to be remitted to the High Court so evidence could be adduced.[9]
[8] As we said in our judgment, Mr Rabson’s chance to adduce the evidence was at the High Court hearing before Wild J. He did not do so, as Wild J found at [97]-[98]. As Mr Rabson’s counsel in this Court concluded: “The trouble is that the evidence doesn’t identify source, timing and effect”.[10]
[9] There is no error identified by Mr Rabson, and no basis for recall.

Costs award

[10] The second ground of recall relates to the costs award. Mr Rabson says it is an abuse to award costs against the successful party. He appears to consider he was successful because Ms Gallaher’s cross-appeal failed.
[11] In fact, Ms Gallagher succeeded in upholding the High Court award, albeit on slightly different grounds. In short, she was the successful party in relation to Mr Rabson’s appeal because Mr Rabson’s appeal failed: he was the unsuccessful party. Costs followed the event as they normally do. Ms Gallagher’s lack of success on the minor issue relating to the VW car does not alter the fact that she succeeded in this Court and Mr Rabson failed. No error occurred. The costs award was a standard award in the circumstances. Again, no basis for recall is identified.
[12] The application is dismissed.

Solicitors:
M Jeffcoat, Wellington for Ms Gallagher
Buddle Findlay, Wellington for the Trustee of the Gallagher-Rabson Family Trust.

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[1] Rabson v Gallagher [2011] NZCA 459 [2011] NZFLR 1040. We will call this the September judgment. In a subsequent judgment, the Court made orders consequential on the findings in the first judgment: Rabson v Gallagher [2011] NZCA 669. We will call this the December judgment. The present application relates to the first judgment only, though Mr Rabson’s complaints relate to both. We will treat it as an application to recall both judgments.
[2] Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 AT [23].

[3] A perfected judgment may be able to be reopened “where there is a real requirement for this to happen”: Taylor v Lawrence [2002] EWCA Civ 90, [2003] QB 528 at [54] (CA).
[4] Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (SC).
[5] Unison Networks Limited v Commerce Commission [2007] NZCA 49 at [10].
[6] Ngahuia Reihana Whanau Trust v Flight CA23/03, 26 July 2004.
[7] Faloon v Commissoner of Inland Revenue (2006) 22 NZTC 19, 832 (HC).
[8] Gallagher v Rabson [2010] NZFLR 1001 (HC).
[9] Transcript at 21-22.
[10] Transcript at 58.