He v Earthquake Commission [2019] NZCA 526 (31 October 2019)

Last Updated: 6 November 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA567/2017 [2019] NZCA 526

	BETWEEN	XIAOMING HE Appellant
	AND	EARTHQUAKE COMMISSION First Respondent
	AND	CERTAIN SYNDICATES OF LLOYD’S OF LONDON SEVERALLY SUBSCRIBED TO COVERHOLDER CONTRACT B0429CNG90466 AND CERTAIN SYNDICATES OF LLOYD’S OF LONDON SEVERALLY SUBSCRIBED TO COVERHOLDER CONTRACT B0429CNG110466 Second Respondents

Court:	Brown, Collins and Goddard JJ
Counsel:	Appellant in person M R Crotty and N L Walker for First Respondent R M Flinn for Second Respondents
Judgment: (On the papers)	31 October 2019 at 2.00 pm

JUDGMENT OF THE COURT

A The application to recall the judgment of this Court is declined.

2. The appellant is ordered to pay the respondents one set of costs of $956 and usual disbursements.

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REASONS OF THE COURT

(Given by Goddard J)

Introduction

[1] On 20 August 2019 this Court issued a judgment^[1] dismissing Mr He’s appeal from a judgment of the High Court.^[2] The High Court judgment determined a number of issues in relation to insurance of Mr He’s house at 377 Selwyn Street in Christchurch against earthquake damage.
[2] On 30 September 2019 Mr He applied to recall this Court’s judgment. That application is opposed by the first respondent and by the second respondents.
[3] The application for recall asks the Court to review the evidence before the High Court and before this Court, with a view to establishing that different findings of fact ought to have been made in relation to the cause of the damage suffered by the house. The application attaches various annotated photographs of the house, and is critical of the use made of photographic evidence in the High Court.
[4] The three categories of case in which a judgment may be recalled are identified in Horowhenua County v Nash (No. 2):^[3]

• (a) where since the hearing there has been an amendment to a relevant statute or regulation or new judicial decision of relevance and high authority;
• (b) where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and
• (c) where for some other “very special reason” justice requires that the judgment be recalled.

[5] The first and second of these categories plainly are not relevant. The matters raised in Mr He’s application do not establish that there is any “very special reason” which in the interests of justice requires that the substantive judgment of this Court be recalled. The application is in substance an attempt to re-litigate the factual findings made in the High Court, and confirmed by this Court. There is no proper basis for recall of this Court’s decision.

Result

[6] The application for recall is declined.
[7] The respondents seek costs. The first respondent and the second respondents filed separate memoranda opposing the application for recall. We consider that a single memorandum on behalf of all respondents would have been sufficient, but recognise that this would still involve counsel for each of the first and second respondents reading the application for recall, and coordinating a response. We consider a reasonable amount of time for this exercise would be 0.4 days in total for both sets of counsel.^[4] We therefore award one set of costs to the respondents collectively of $956 (0.4 x $2,390, which is the daily recovery rate for a category 2 proceeding in the High Court) and usual disbursements.

Solicitors:
Russell McVeagh, Wellington for First Respondent
Wotton + Kearney, Wellington for Second Respondents

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^[1] He v Earthquake Commission [2019] NZCA 373.

^[2] He v Earthquake Commission [2017] NZHC 2136.

^[3] Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC) at 633. See also Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76 at [2].

^[4] Court of Appeal (Civil) Rules 2005, r 53D(1)(b).