DE MEYER AND SLAVICH v INSIGHT LEGAL LIMITED & ORS [2023] NZCA 370
Paragraph [24] was correct: Insight Legal Ltd and Nic Slavich Ltd commenced the High Court proceeding and abandoned the arbitration application; the applicants' position that defendants can dictate plaintiffs' pleadings is incorrect; no very special reason to recall exists; recall declined and costs awarded to...
Source-derived case information.
- Citation
- [2023] NZCA 370
- Parties
- Applicant: Kirsty Alice De Meyer; Applicant: John Kenneth Slavich; First Respondent: Insight Legal Limited; Second Respondent: Nic Slavich Limited; Third Respondent: Peter Steven Slavich; Fourth Respondents: Anthony Nicolas Slavich and Peter Steven Slavich as trustees of the estate of Nicholas Slavich; Fifth Respondent: Frana van Hellemond; Sixth Respondent: Marica Slavich; Seventh Respondent: Nicholas Slavich; Eighth Respondent: Slavich Properties Limited
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 16 August 2023
- Procedural Posture
- Appeal / Recall of Judgment (on the Papers)
- Outcome
- Application for recall of judgment [2023] NZCA 82 declined; applicants ordered to pay costs to specified respondents.
- Legal Topics
- Recall of Judgment, Extension of Time to Appeal, Abandonment of Contention, Pleadings Control, Costs Assessment
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kirsty Alice De Meyer
Applicant
John Kenneth Slavich
Applicant
Insight Legal Limited
First Respondent
Nic Slavich Limited
Second Respondent
Peter Steven Slavich
Third Respondent
Anthony Nicolas Slavich and Peter Steven Slavich as trustees of the estate of Nicholas Slavich
Fourth Respondents
Frana van Hellemond
Fifth Respondent
Marica Slavich
Sixth Respondent
Nicholas Slavich
Seventh Respondent
Slavich Properties Limited
Eighth Respondent
Procedural Posture
Appeal / Recall of Judgment (on the Papers)
Legal Issues
- 1 Whether paragraph [24] misapprehended which parties abandoned the arbitration application
- 2 Whether recall of the Court of Appeal judgment is justified under the 'very special reason' limb of Horowhenua County v Nash (No 2)
- 3 Whether defendants can dictate plaintiffs' pleadings
Ratio Decidendi
Paragraph [24] was correct: Insight Legal Ltd and Nic Slavich Ltd commenced the High Court proceeding and abandoned the arbitration application; the applicants' position that defendants can dictate plaintiffs' pleadings is incorrect; no very special reason to recall exists; recall declined and costs awarded to respondents.
Court Disposition
Application for recall of judgment [2023] NZCA 82 declined; applicants ordered to pay costs to specified respondents.
Orders
- The application for recall of judgment [2023] NZCA 82 is declined.
- The applicants must pay one set of costs to the third, fifth, sixth and seventh respondents for an interlocutory application on a band A basis, together with usual disbursements.
Full Case Text
Judgment text and source record
1 paragraphs
DE MEYER AND SLAVICH v INSIGHT LEGAL LIMITED & ORS [2023] NZCA 370 [16 August 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA358/2022[2023] NZCA 370BETWEEN KIRSTY ALICE DE MEYER ANDJOHN KENNETH SLAVICHApplicantsAND INSIGHT LEGAL LIMITEDFirst RespondentNIC SLAVICH LIMITEDSecond RespondentPETER STEVEN SLAVICHThird RespondentANTHONY NICOLAS SLAVICH ANDPETER STEVEN SLAVICH ASTRUSTEES OF THE ESTATE OFNICHOLAS SLAVICHFourth RespondentsFRANA VAN HELLEMONDFifth RespondentMARICA SLAVICHSixth RespondentNICHOLAS SLAVICHSeventh RespondentSLAVICH PROPERTIES LIMITEDEighth RespondentCourt: Cooper P and Brown JCounsel: K A de Meyer and J K Slavich in PersonNo appearance for First, Second, Fourth and Eighth RespondentsT M Braun for Third, Fifth, Sixth and Seventh RespondentsJudgment:(On the papers)16 August 2023 at 11.00 amJUDGMENT OF THE COURT(Recall)A The application for recall of judgment [2023] NZCA 82 is declined.B The applicants must pay one set of costs to the third, fifth, sixth and seventhrespondents costs for an interlocutory application on a band A basis, togetherwith usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Cooper P)[1] The applicants apply for recall of this Court's judgment delivered on28 March 20231 declining their application under r 29A of the Court of Appeal (Civil)Rules 2005 for an extension of time to appeal from a judgment of the High Court.2[2] The focus of the recall application is paragraph [24] of our judgment,which states:The applicants apparently wish to pursue on appeal the argument that, inaccordance with the interlocutory minute of Katz J, they should have beenallowed to pursue the issue of an order requiring arbitration. But Insightabandoned that contention at the hearing and no other party (including thepresent applicants) had raised it in a pleading.[3] The applicants contend that that paragraph "misapprehended" what was andwho was involved in the High Court proceeding. For that reason they contend thatrecall is justified pursuant to the third limb in Horowhenua County v Nash (No 2),there being a very special reason why justice requires that the judgment be recalled.3[4] We do not consider that there was any error in paragraph [24] of our judgment.It was Insight Legal Ltd and Nic Slavich Ltd that commenced the proceeding inthe High Court, and it was those parties which abandoned the application for an order1 De Meyer v Insight Legal Ltd [2023] NZCA 82.2 Insight Legal Ltd v Slavich [2022] NZHC 1050.3 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.requiring arbitration. There was no other relevant pleading. As the third, fifth, sixthand seventh respondents submit in opposition to the recall application, it is theapplicants who are suffering from a misapprehension that their position as defendantspermits them to dictate the pleadings of the plaintiffs.[5] The application for recall of our judgment is declined.[6] The applicants must pay one set of costs to the third, fifth, sixth and seventhrespondents for an interlocutory application on a band A basis, together with usualdisbursements.Solicitors:Braun Bond & Lomas Ltd, Hamilton for Third, Fifth, Sixth and Seventh Respondents