AVISON V MCFARLANE & ORS [2015] NZCA 471
There was no very special reason to recall the costs aspect: the Calderbank offer relied on was peripheral because it addressed issues beyond the appeal, was not the final offer, and would not have materially affected the costs outcome; accordingly the recall application was dismissed.
Source-derived case information.
- Citation
- [2015] NZCA 471
- Parties
- Appellant: Ngaire Jane Elizabeth Avison; First Respondents: Wayne James McFarlane; Ngaire Jane Elizabeth Avison; David William Butler as trustees of the Avian Trust; Second Respondent: Wayne James McFarlane
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 5 October 2015
- Procedural Posture
- Civil Appeal / Recall Application (on the Papers)
- Outcome
- Application for recall dismissed
- Legal Topics
- Calderbank Offers, Costs Discretion, Recall of Judgment, Settlement Negotiations
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ngaire Jane Elizabeth Avison
Appellant
Wayne James McFarlane; Ngaire Jane Elizabeth Avison; David William Butler as trustees of the Avian Trust
First Respondents
Wayne James McFarlane
Second Respondent
Procedural Posture
Civil Appeal / Recall Application (on the Papers)
Legal Issues
- 1 Whether there was a 'very special reason' to recall the costs aspect of the Court of Appeal judgment
- 2 Whether a Calderbank offer of 30 March 2015 should have been taken into account in the costs award
- 3 Whether the offer was comparable to the outcome and within the Court's power to order
Ratio Decidendi
There was no very special reason to recall the costs aspect: the Calderbank offer relied on was peripheral because it addressed issues beyond the appeal, was not the final offer, and would not have materially affected the costs outcome; accordingly the recall application was dismissed.
Court Disposition
Application for recall dismissed
Orders
- The application for recall is dismissed.
- Costs orders made in the judgment of 16 June 2015 remain in force.
Full Case Text
Judgment text and source record
1 paragraphs
AVISON V MCFARLANE & ORS [2015] NZCA 471 [5 October 2015]IN THE COURT OF APPEAL OF NEW ZEALANDCA498/2014[2015] NZCA 471BETWEEN NGAIRE JANE ELIZABETH AVISONAppellantAND WAYNE JAMES MCFARLANE,NGAIRE JANE ELIZABETH AVISONAND DAVID WILLIAM BUTLER ASTRUSTEES OF THE AVIAN TRUSTFirst RespondentsWAYNE JAMES MCFARLANESecond RespondentCourt: Cooper, Venning and Williams JJCounsel: J C Gwilliam for AppellantR J Fowler QC for RespondentsJudgment:(On the papers)5 October 2015 at 10 amJUDGMENT OF THE COURTThe application for recall is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)[1] Mr Fowler QC filed a memorandum on 14 September 2015, the tenor of which was to seek recall of the costs aspect of our judgment of 16 June 2015.1 Suchrecall requires a "very special reason".21 Avison v McFarlane [2015] NZCA 409 at [78].2 Horowhenua County v Nash (No. 2) [1968] NZLR 632 (SC) at 633.[2] Mr Fowler submits that his client made a Calderbank offer to settle theappeal on terms, he submitted, "virtually identical" to the outcome in the appeal.Mr Fowler appended the 30 March 2015 correspondence to his memorandum. He submitted that the offer should have been taken into account in the costs award.[3] Mr Gwilliam filed a memorandum in response submitting that:(a) the Calderbank offer was in fact only the first in a series of offers and counter-offers and was, in any event, ultimately withdrawn;(b) the exchange of correspondence related to the potential settlement of a number of outstanding issues only some of which were before this Court in the appeal;(c) the result was not virtually identical to the respondent's Calderbankoffer because other assets and issues were the subject of the offer (and subsequent counter-offer) and those matters were not before this Court; and(d) in any event, the proposed settlement was unsatisfactory from a practical point of view as it would have involved Ms Avison owning a property she did not want situated next door to Mr McFarlane and his new wife.[4] We do not consider that there is any "very special reason" to recall thejudgment and revisit the costs award in this appeal. We agree with Mr Gwilliam that the Calderbank offer put before us was directed at resolving all issues, not just those live in the appeal. In particular, it proposed a resolution that was not open to this Court to direct in the appeal. In addition, the offer identified was not the last offermade by Mr Fowler's client. Its relevance is therefore peripheral at best. The lastoffer made by Mr Fowler's client, dated 20 May 2015, also had all of the problematic attributes to which we have referred in relation to the first offer.[5] We conclude therefore that it cannot be said that the offer of 30 March 2015 would have made any material difference to costs in the appeal. The application for recall is dismissed accordingly.Solicitors:Main Street Legal Ltd, Upper Hutt for AppellantJAG Legal, Lower Hutt for Respondents