Walmsley Enterprises Limited v Aitchison [2018] NZHC 3071 (23 November 2018)

Last Updated: 27 November 2018

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2016-485-485 [2018] NZHC 3071

BETWEEN	WALMSLEY ENTERPRISES LIMITED & ORS Appellant
AND	PETER AND SYLVIA AITCHISON Respondents

Hearing:	On the papers
Judgment:	23 November 2018

JUDGMENT OF CLARK J

Introduction

[1] Mr Walmsley applies to recall my judgment issued on 30 June 2017¹ determining an appeal and cross-appeal against costs orders made in the Environment Court.² I dismissed Walmsley Enterprise Ltd’s appeal and dismissed also the cross- appeal by the respondents against the amount awarded to them by way of indemnity costs.

[2] The Environment Court awarded costs following enforcement proceedings brought in that Court seeking the removal of a structure which the Walmsleys had erected on the boundary between them and their neighbours, the Aitchisons.³

1. Walmsley Enterprises Ltd v Aitchison [2017] NZHC 1504, [2018] NZRMA 117 [2017 costs appeal judgment].

² Aitchison v Walmsley [2016] NZEnvC 114 [EC Enforcement costs decision].

³ Aitchison v Walmsley [2016] NZEnvC 13 [EC Enforcement decision].

WALMSLEY ENTERPRISES LIMITED & ORS v AITCHISON [2018] NZHC 3071 [23 November 2018]

Application for recall

[3] Mr Walmsley applies for recall of the 2017 costs appeal judgment on the following three grounds:

(a) The judgment misrepresents or incompletely represents the Environment Court’s position on the effects of the structure “re- exposed in a new decision”.

(b) The Council obtained a decision by deception (intentional or unintentional) because the Council advised the Court and the Walmsleys it expressly recognised effects as being within the District Plan to obtain a declaration which was then not appealed and after which the Council told another Court that it did not expressly recognise the effects as being within the District Plan to get another decision on another matter.

(c) I have not attempted to summarise the third ground as I am at risk of misunderstanding it. I set out Mr Walmsley’s third ground at it appears in his application.

Seeking finality in litigation now instead of a new series of proceedings against the Council for professional negligence around the change in position on effects between court cases.

[4] Mr Walmsley says the need to correct my judgment arises from a further decision which I delivered on 10 July 2018 determining another costs appeal between the parties following separate but related litigation.⁴ In my summary of the Environment’s Court’s decision I stated:⁵

The Environment Court identified deficiencies in the Council’s approach. The Council “knew full well” of the Aitchisons’ opposition and that they had identified significant likely adverse effects on their amenity.

⁴ Aitchison v Wellington City Council [2018] NZHC 1674 [2018 costs appeal judgment].

⁵ At [9].

[5] Mr Walmsley seeks correction of what he describes as the following misrepresentations in my judgment:⁶

[36] ... The Court accepted the evidence of the expert planning witness for the Council, Mr Ulusele, that there was no evidence in the decision of the Hearing Committee that it thought the type of effects that arose for the Aitchisons would result from the District Plan provisions. ...

[37] ... Nor did the Environment Court see anything in the evidence which implied the Council must have expressly recognised the type and degree of effects experienced in this case.

[6] My Walmsley asks that I “redecide” my decision by substituting the passages with the following passages:

[36] ... The Environment Court accepted the evidence of the expert planning witness for the Council, Mr Ulusele and Counsel, that the type of effects that arose for the Aitchisons would result form the District Plan provisions.

[37] ... the Environment Court saw evidence which confirmed that the Council expressly recognised the type and degree of effects experienced in this case.

The principles applying to recall

[7] The leading statement in New Zealand as to recall of judgments remains that of Wild CJ in Horowhenua County v Nash (No 2):⁷

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.

[8] The first two of the Horowhenua categories do not arise on Mr Walmsley’s application. The only remaining basis for recall is the third category: is there a very special reason justice requires the judgment to be recalled?

⁶ 2017 costs appeal judgment, above n 1.

⁷ Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

[9] In Nottingham v Real Estate Agents Authority the Court of Appeal observed that the third category is not defined with particularity in any judgments. Nevertheless, the grounds upon which a judgment may be recalled are strictly limited:⁸

... 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. It does not extend to asking the Court to reverse interlocutory decisions such as adjournment decisions on the grounds they were wrongly decided

My decision

[10] For the three primary reasons which follow I have concluded there is no basis for the recall of my judgment.

[11] First, Mr Walmsley’s submission unfortunately reflects a misconception about the passages which he would have corrected and substituted. The July 2018 costs appeal judgment does not contradict the June 2017 costs appeal judgment.

[12] The June 2017 costs appeal judgment considered the Environment Court’s award of costs on the enforcement application in that Court. The issue arising from s 319(2)(b) of the Resource Management Act 1991 as to whether the Council “expressly recognised” effects was in a jurisdictional context. Under s 319(2)(b) the Environment Court must not make an enforcement order where (as in this case) the Council had expressly recognised the effects. The Environment Court concluded the Council had not expressly recognised the adverse effects of the structure which was the subject of the application for an enforcement order.

[13] That assessment by the Environment Court was quite distinct from my observations in the 2018 costs appeal judgment.⁹

⁸ Nottingham v Real Estate Agents Authority [2017] NZCA 145 at [9] (footnotes omitted).

⁹ See [4] above.

[14] Second, the paragraphs which Mr Walmsley would have recalled simply summarise the Environment Court’s findings. My statements accurately reflect the Environment Court’s findings and, as such, there is no error to be corrected.

[15] Third, the Court of Appeal refused leave to Mr Walmsley to appeal the 2017 costs appeal decision. The Court of Appeal observed:¹⁰

As to the Walmsleys’ reliance upon the Council’s issue of a certificate of compliance in relation to the structure, a council officer gave evidence that the certificate was for a structure with a length of 7.7 metres. The structure as completed was over 20 metres in length with a play structure and walkway attached. It was therefore entirely different to that addressed under the certificate of compliance.

The Walmsleys also argue that because the effect of the District Plan was to allow the structure as a permitted activity, s 319(2) applied to prohibit the issue of an enforcement order. The Environment Court found nothing in the evidence which implied the Council expressly recognised the type and group of effects experienced in this case. The Environment Court said it “is difficult to see how this combination of factors could have been foreseen and expressly recognised when bringing down the rules and standards we are discussing”.

[16] Mr Walmsley applied for recall of the Court of Appeal’s decision, but the Court of Appeal refused to do so.¹¹

[17] There is no basis for Mr Walmsley’s assertion there is an error in my judgment of June 2017. In the context of the prolonged history of dispute and litigation between the parties the Court of Appeal’s final observation in Nottingham is apt:¹²

The threshold for recall is high. This reflects the need for finality in litigation. This is particularly important in a case such as the present, where there is a prolonged history of litigation in respect of the same dispute...

Result

[18] The application for recall is dismissed.

¹⁰ Walmsley v Aitchison [2017] NZCA 500 at [14]–[15].

¹¹ Walmsley v Aitchison [2017] NZCA 512.

¹² Nottingham v Real Estate Agents Authority, above n 8, at [13].

[19] Mr Walmsley represented the appellant and no other party was involved in the application for recall. No issue of costs arises.





Karen Clark J