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Stockco Limited v Tawhiti-Ariki Limited HC Auckland CIV-2010-404-003413 [2011] NZHC 1479 (23 May 2011)

Last Updated: 14 November 2011


IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-003413

BETWEEN STOCKCO LIMITED Plaintiff

AND TAWHITI-ARIKI LIMITED First Defendant

AND MICHAEL PHILLIP PROUDE Second Defendant

Hearing: On the papers

Counsel: B Gustafson for the Plaintiff

A Barker for the Defendants

Judgment: 23 May 2011


JUDGMENT OF WOOLFORD J

(As to recall of judgment dated 29 April 2011)


This judgment was delivered by me on Monday, 23 May 2011at 3:00 pm pursuant to r 11.5 of the High Court Rules.


Registrar/Deputy Registrar

Solicitors:

B Gustafson, PO Box 1297, Shortland Street, Auckland. Email: bret@gustafson.co.nz

A Barker, Shortland Chambers, PO Box 4338, Shortland Street, Auckland 1140.

Email: ab@shortlandchambers.co.nz

Lowndes Jordan, PO Box 5966, Wellesley Street, Auckland 1141. DX CP21511

Email: mhm@lojo.co.nz

Harris Harvey Nash, PO Box 3, Ohakune 5461. DX PA85505

STOCKCO LIMITED V TAWHITI-ARIKI LIMITED & Or HC AK CIV-2010-404-003413 23 May 2011

Introduction

[1] The applicant, StockCo Limited, applies for the recall of a judgment I gave on 29 April 2011 in favour of StockCo in the sum of $305,887.17.

[2] StockCo had pleaded three causes of action, namely, conversion, breach of a security agreement and damage to its reversionary interest. In the judgment dated

29 April 2011 I stated that because of my finding on the first and third causes of action it was unnecessary to consider the second cause of action being enforcement of the security agreement against the respondents.

The recall application

[3] StockCo seeks recall on the basis of my decision not to make a finding on its second cause of action. It submits that if it succeeds on the second cause of action then it can enforce its priority as a secured creditor over the stock in question and trace the proceeds into the bank accounts frozen in the initial interlocutory freezing orders.

[4] StockCo submits that if the orders sought in respect of the second cause of action are made they would give StockCo priority ahead of other creditors to those funds and if the proceeds had been taken by another party, either the respondents who operate the accounts into which the money had been paid or the banks after receiving notice of StockCo’s rights, then those parties would be liable to pay equitable compensation.

Discussion

[5] Rule 11.9 of the High Court Rules provides:

11.9 Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[6] StockCo submits that Brake v Boote[1] is authority for the proposition that a Judge has jurisdiction to recall his or her judgment when the Judge has failed to determine an issue that was properly put to him or her.

[7] It is my view, however, that the situation in Brake v Boote is quite different to the present case. That case involved a true oversight by the Court in that it failed to consider the issue of interest. In this case, I did consider the second cause of action and decided that in light of my findings on the third cause of action I did not need to consider or decide that issue. It is not a case of oversight. It is a finding on the nature of that cause of action.

[8] The respondents submit that my approach to this issue is not uncommon and that Courts will often when faced with a number of causes of action resolve the case on one cause of action alone and on that basis determine that no decision is required in respect of the other causes of action.

[9] I have also had regard to the decision of the Court of Appeal in Unison Networks Ltd v Commerce Commission[2] and the comments made by the Court about the limited nature of the jurisdiction to recall a judgment. I therefore decline the application for recall of my judgment dated 29 April 2011. StockCo’s remedy is appeal and not recall.

[10] StockCo also seeks clarification of the continuance of the interim orders. As noted in para [99] of my judgment dated 29 April 2011, the existing interlocutory orders are still current. I sought submissions on any supplementary orders which may be necessary to give effect to the judgment, for example, by discharging or modifying those existing orders. I confirm that the interim orders are to remain in

force until such time as they are discharged by this Court or by the Court of Appeal.

[11] I invite counsel to file further memoranda in due course in relation to the

interim orders.


Woolford J


[1] Brake v Boote (1991) 4 PRNZ 86 (HC).

[2] Unison Networks Ltd v Commerce Commission [2007] NZCA 49.


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