WILSON AND ORS V IRVINE AND ORS HC AK CIV-2007-404-6640

WILSON AND ORS V IRVINE AND ORS HC AK CIV-2007-404-6640

Recall of the judgment was refused because counsel had been alerted to the Rule change and had opportunity to make submissions, and there was no 'very special reason' to displace the finality of judgment despite the proximity of the Rule amendment; the defendants' arguable equitable set-off under the amended rule defeated the summary judgment application.

Citation
openlaw-d497f581_7c73_415a_8615_f98c65276ab7.pdf
Parties
First Plaintiff: John D Wilson; Second Plaintiff: Adele Joy Wilson; Third Plaintiff: Tracey Michelle White; Defendant: Johnathan B Irvine; Second Defendant: Felicity Jane Irvine; Third Defendant: Timothy Malcolm Irvine
Court
High Court
Jurisdiction
New Zealand
Judgment Date
27 July 2009
Procedural Posture
Summary Judgment Application / Recall of Judgment Following Summary Judgment Decision
Outcome
Application to recall the judgment dismissed.
Legal Topics
Summary Judgment, Equitable Set Off, Recall of Judgment, High Court Rules Amendment
Civil Procedure Equity Contract Trusts Summary Judgment Equitable Set Off Recall of Judgment High Court Rules Amendment

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Legal principles 2 Authorities cited 4 Party arguments 2 Amounts and remedies 3
Sign in to unlock

Parties

John D Wilson

First Plaintiff

Adele Joy Wilson

Second Plaintiff

Tracey Michelle White

Third Plaintiff

Johnathan B Irvine

Defendant

Felicity Jane Irvine

Second Defendant

Timothy Malcolm Irvine

Third Defendant

Procedural Posture

Summary Judgment Application / Recall of Judgment Following Summary Judgment Decision

Legal Issues

  1. 1 Whether the judgment should be recalled under the Horowhenua County categories
  2. 2 Whether the amended High Court Rules (r 12.2) changed entitlement to summary judgment
  3. 3 Whether abandonment of part of the plaintiff's claim could remove the defendants' defence and justify recall

Ratio Decidendi

Recall of the judgment was refused because counsel had been alerted to the Rule change and had opportunity to make submissions, and there was no 'very special reason' to displace the finality of judgment despite the proximity of the Rule amendment; the defendants' arguable equitable set-off under the amended rule defeated the summary judgment application.

Court Disposition

Application to recall the judgment dismissed.

Orders

  • Application to recall judgment dismissed.
  • If parties cannot agree costs, counsel are to file memoranda not exceeding three pages within 10 working days of the date of this judgment.