NOTTINGHAM v MALTESE CAT LIMITED [2020] NZCA 31

NOTTINGHAM v MALTESE CAT LIMITED [2020] NZCA 31 [28 February 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA572/2017[2020] NZCA 31BETWEEN DERMOT NOTTINGHAMApplicantAND MALTESE CAT LIMITEDFirst RespondentCLYDE ALEXANDER MacLEANSecond RespondentELIZABETH MAY CURRIEThird RespondentJOHN DOE AND/OR JANE DOEFourth RespondentCourt: Courtney, Brewer and Gendall JJCounsel: Applicant in PersonD Connor and K Chow for First, Second and Third RespondentsJudgment:(On the papers)28 February 2020 at 9.30 amJUDGMENT OF THE COURTA The application for recall is dismissed.B The respondents shall have costs on a band A basis.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] Mr Nottingham applied unsuccessfully in the High Court to strike out therespondents' claim on the basis that it is time-barred.1 This Court dismissedMr Nottingham's appeal against that decision.2 Mr Nottingham was ordered to payone set of costs for a standard appeal on a band A basis with usual disbursements. Hehas now applied for a recall of the judgment and a rehearing of the appeal on variousissues.[2] Rule 8A of the Court of Appeal (Civil) Rules 2005 provides that the Court mayrecall or reopen a judgment. However, the circumstances in which it will do so arevery limited.3 The criteria are those set out in Horowhenua County v Nash (No 2):4Generally speaking, a judgment once delivered must stand for better or worsesubject, of course, to appeal. Were it otherwise there would be greatinconvenience and uncertainty. There are, I think, three categories in which ajudgment not perfected may be recalled – first, where since the hearing therehas been an amendment to a relevant statute or regulation or a new judicialdecision of relevance and high authority; secondly, where counsel have failedto direct the Court's attention to a legislative provision or authoritativedecision of plain relevance; and thirdly, where for some other very specialreason justice requires that the judgment be recalled.[3] Mr Nottingham identifies five grounds for his application. They can bebroadly summarised as follows:(a) the costs awarded are punitive and unfair in the circumstances;(b) in considering costs the Court failed to take into account allegations ofperjury by the respondents and the merits of Mr Nottingham'ssubstantive argument;(c) there were errors of law by the Court and bias by one of the panel;(d) there is a history of this Court making decisions adverse toMr Nottingham; and1 Maltese Cat Ltd v John Doe and/or Jane Doe [2017] NZHC 1728, (2017) 24 PRNZ 254 at [22].2 Nottingham v Maltese Cat Limited [2019] NZCA 641.3 Erwood v Maxted [2010] NZCA 93, [2010] 20 PRNZ 466 at [23].4 Horowhenua County v Nash (No 2) [1968] NZLR 632 at 633 (SC).(e) Mr Nottingham's rights under the New Zealand Bill of Rights Act1990, the International Covenant on Civil and Political Rights and theDeclaration of the Right and Responsibility of Individuals, Groups andOrgans of Society to Promote and Protect Universally RecognisedHuman Rights and Fundamental Freedoms have not been observed.[4] In a subsequent memorandum dated 17 February 2020 filed in response to therespondents' memorandum Mr Nottingham reframed the grounds slightly but theessential complaints remain as set out above.[5] It is evident from Mr Nottingham's memorandum that he wishes to reargue anumber of matters that were argued at the hearing of the appeal and, moreover, seeksto have this Court take further steps to investigate factual matters in issue between theparties. None of the matters Mr Nottingham raises are within the category of casesappropriate for recall. Mr Nottingham's proper course is to pursue the application forleave to appeal to the Supreme Court that he filed prior to making the presentapplication.[6] The respondents have sought costs on a band A basis in respect of thisapplication. Mr Nottingham did not address the issue of costs in his memorandum.We grant costs on the basis sought.Solicitors:DB Law, Auckland for First, Second and Third Respondents