QUENTIN STOBART HAINES v ROY WILLIAM BASSETT-BURR [2023] NZCA 591

QUENTIN STOBART HAINES v ROY WILLIAM BASSETT-BURR [2023] NZCA 591 [23 November 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA60/2023[2023] NZCA 591BETWEEN QUENTIN STOBART HAINESApplicantAND ROY WILLIAM BASSETT-BURRRespondentCourt: Miller, Moore and Palmer JJCounsel: J D Dallas for ApplicantDGO Livingston for RespondentJudgment:(On the papers)23 November 2023 at 3.00 pmJUDGMENT OF THE COURT(Application for recall)A The application for recall is declined.B Mr Haines must pay costs for a standard application on a band A basis. Costsshould reflect the need for the respondents to file additional memoranda inresponse to the amended application.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)[1] Mr Haines has moved for recall of the Court's judgment of 21 August 2023.1He seeks a full rehearing. He has filed an amended application and two affidavits insupport. The application is opposed.1 Bassett-Burr v Haines [2023] NZCA 380.[2] In accordance with normal practice, the recall application has been referred tothe same panel for a decision on the papers. There is no reason to depart from usualpractice in that regard.[3] The grounds advanced are that:3.1 It was a matter of record that the statutory demands had beenimproperly issued. That record was made in the High Court andsubsequently confirmed in the Supreme Court. Those decisions werenot under appeal, the Court of Appeal had no jurisdiction to make afinding that the demands had been properly issued.3.2 The Case on Appeal as filed was not prepared in consultation and didnot comply with the Court of Appeal (Civil) Rules 2005. The Case onAppeal was unable to be effectively used by Counsel or the Courtduring the hearing resulting in the Court being unable to be directed tothe relevant evidence. The Case on Appeal contained severalsignificant departures from the bundle of evidence on record beforeHis Honour Justice Churchman.3.3 The Court did not consider the time frames for filing an application forsetting aside a statutory demand 10 working days after service ascontained in s 289 Companies Act 1993.3.4 The Court did not consider the judgment of His Honour AssociateJudge Johnston (which is under appeal) confirming legal fees beingowed to Mr Haines in the sum of $603,750 incl GST issued after thedecision under appeal but prior to the hearing of this appeal.3.5 Counsel for Mr Bassett-Burr did not disclose relevant documents(discharge of mortgage) which would have shown Grice J was wrongto enter summary judgment against Mr Haines.[4] The application is in substance an attempt to relitigate the merits of the Court'sjudgment by reference to collateral matters which, with respect to Mr Dallas,manifestly have no or little bearing on the Court's decision. None of the groundsadvanced affect the Court's conclusions that the issue of the demands was not an abuseof process and Mr Bassett-Burr did not act improperly.[5] The Court does not accept that it overlooked relevant material, whetherbecause of deficiencies in indexing of the casebook or otherwise. The unsatisfactorycharacter of the recall application is nicely illustrated by Mr Livingston's point thatMr Dallas identifies not one document that could not be located at the time and mighthave affected the outcome. Nor, for the reasons given in the judgment,2 does the Courtaccept that Mr Haines needed to move as quickly as he did to set aside the demands.[6] The only allegation which requires additional comment is the claim that twodischarges of mortgage which were not before us in the previous hearing show that,contrary to the Court's finding,3 the Haines interests are not liable on the assigneddebts. If correct, which seems very unlikely for the reasons given by Mr Livingston,the point would not alter our conclusion that non-party costs ought not to have beenawarded. We record, in fairness to Mr Livingston, that he says no discovery had beenmade, on either side, at the time of the summary judgment hearing; that is to say, therewas no breach of his duty as an officer of the Court.[7] The application for recall is declined. The only available remedy forMr Haines, should he wish to challenge the judgment of 21 August, is an applicationfor leave to appeal to the Supreme Court.[8] Mr Haines must pay costs on this application on a band A basis. Costs shouldreflect the need for the respondents to file additional memoranda in response to theamended application.Solicitors:jd Dallas, Wellington for ApplicantLivingston & Livingston, Wellington for Respondent2 At [34].3 At [41].