COMMERCIAL FACTORS LIMITED v SCENIC HOTEL GROUP LIMITED [2022] NZCA 580
The judgment was recalled because the Court had issued its substantive decision on the incorrect factual basis that no High Court costs decision existed; recall was necessary to permit the appeal against the High Court costs decision to be addressed, and no costs are ordered for the recall application.
Source-derived case information.
- Citation
- [2022] NZCA 580
- Parties
- Appellant: Commercial Factors Limited; Respondent: Scenic Hotel Group Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 28 November 2022
- Procedural Posture
- Appeal / Recall Application in the Court of Appeal
- Outcome
- Recall granted; judgment to be reissued to address the appeal against the High Court costs decision; no costs on the recall application.
- Legal Topics
- Recall of Judgment, Costs Remittal, Appellate Procedure
Source-derived case record
Summary, issues, holding and outcome
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Parties
Commercial Factors Limited
Appellant
Scenic Hotel Group Limited
Respondent
Procedural Posture
Appeal / Recall Application in the Court of Appeal
Legal Issues
- 1 Whether the Court should recall its earlier judgment to address an overlooked High Court costs decision
- 2 Whether any costs order should be made in respect of the recall application
Ratio Decidendi
The judgment was recalled because the Court had issued its substantive decision on the incorrect factual basis that no High Court costs decision existed; recall was necessary to permit the appeal against the High Court costs decision to be addressed, and no costs are ordered for the recall application.
Court Disposition
Recall granted; judgment to be reissued to address the appeal against the High Court costs decision; no costs on the recall application.
Orders
- The application for recall is granted.
- The judgment of 8 July 2022 is recalled and is to be reissued addressing the appeal against the High Court costs decision.
Full Case Text
Judgment text and source record
1 paragraphs
COMMERCIAL FACTORS LIMITED v SCENIC HOTEL GROUP LIMITED [2022] NZCA 580 [28 November2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA495/2020[2022] NZCA 580BETWEEN COMMERCIAL FACTORS LIMITEDAppellantAND SCENIC HOTEL GROUP LIMITEDRespondentCourt: Miller, Clifford and Courtney JJCounsel: P J Dale KC and A J Steel for AppellantJBM Smith KC and JLW Wass for RespondentJudgment:(On the papers)28 November 2022 at 11.30 amJUDGMENT OF THE COURTA The application for recall is granted.B We make no order for costs on the recall application.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] In a judgment delivered on 8 July 2022 this Court dismissed the appeal broughtby Commercial Factors Limited (Factors) and the cross-appeal brought by ScenicHotel Group Limited.1 It also remitted the issue of costs in the High Court to the HighCourt for determination. The appellant has applied to recall the judgment in respectof the order remitting the question of costs.1 Commercial Factors Ltd v Scenic Hotel Group Ltd [2022] NZCA 300.[2] When the appeal and cross-appeal were initially filed, the issue of costs hadnot been determined in the High Court. Osborne J subsequently delivered a costsdecision.2 Factors filed an amended notice of appeal signalling its intention to appealthe costs decision. Unfortunately, no citation was provided for the decision, thedecision was not included in the case on appeal and neither party's submissionsreferred to the decision itself. The substantive decision of this Court was issued onthe incorrect basis that no costs decision had been made.[3] This is a case in which recall is plainly justified. The judgment is recalled andis to be reissued with the appeal against the High Court costs decision addressed.[4] We make no order for costs on the recall application.Solicitors:Kootelle Lawyers, Auckland for AppellantMeares Williams, Christchurch for Respondent2 Commercial Factors Ltd v Scenic Hotel Group Ltd [2020] NZHC 2407.