CHURCHILL AND ORS V ARAL PROPERTY HOLDINGS LIMITED AND ANOR HC AK CIV-2001-404-002302

CHURCHILL AND ORS V ARAL PROPERTY HOLDINGS LIMITED AND ANOR HC AK CIV-2001-404-002302

The late production of Mr Chong's confidential statement did not alter the factual position such that recall was justified because Chong's sworn affidavit of 17 June 2003 and his subsequent trial evidence supplanted any earlier discrepancies; alleged conduct by the defendants' solicitor, even if established, was not relevant to the defendants' entitlement to increased/indemnity costs and issues between solicitor and client belonged to separate proceedings or disciplinary channels; therefore the re‑call application and r 9.75 relief were dismissed.

Citation
openlaw-5e3d72c7_bbc4_4fc5_83f4_6f10bb4ac564.pdf
Parties
First Plaintiff: Churchill Group Holdings Limited; Second Plaintiff: Cachinal Investments Limited; Third Plaintiff: Matam Investments Limited; Fourth Plaintiff: Cleveland Investments Limited; First Defendant: Aral Property Holdings Limited; Second Defendant: David Leung
Court
High Court
Jurisdiction
New Zealand
Judgment Date
20 August 2009
Procedural Posture
High Court Civil Proceeding (interlocutory Costs Application) / Application to Recall Judgment Under R 9.75/r 14.7(g) — Hearing and Reserved Judgment on Re‑call of 24 March 2009 Judgment
Outcome
Application to recall the 24 March 2009 judgment dismissed; leave granted to file the re‑call application out of time.
Legal Topics
Recall of Judgment, R 9.75 Appearance Order, R 14.7(g) Refusal/reduction of Costs, Indemnity Costs, Allegation of Solicitor Misconduct, Admissibility/hearsay
Civil Procedure Costs Evidence Professional Conduct Recall of Judgment R 9.75 Appearance Order R 14.7(g) Refusal/reduction of Costs Indemnity Costs +2 more

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Parties

Churchill Group Holdings Limited

First Plaintiff

Cachinal Investments Limited

Second Plaintiff

Matam Investments Limited

Third Plaintiff

Cleveland Investments Limited

Fourth Plaintiff

Aral Property Holdings Limited

First Defendant

David Leung

Second Defendant

Procedural Posture

High Court Civil Proceeding (interlocutory Costs Application) / Application to Recall Judgment Under R 9.75/r 14.7(g) — Hearing and Reserved Judgment on Re‑call of 24 March 2009 Judgment

Legal Issues

  1. 1 Whether the production of a confidential witness statement after delivery of judgment constituted exceptional/new matter justifying recall
  2. 2 Whether an order under r 9.75 should compel a solicitor (Mr Simpson) to attend and produce documents
  3. 3 Whether alleged solicitor misconduct could justify refusal or reduction of defendants' indemnity costs under r 14.7(g)

Ratio Decidendi

The late production of Mr Chong's confidential statement did not alter the factual position such that recall was justified because Chong's sworn affidavit of 17 June 2003 and his subsequent trial evidence supplanted any earlier discrepancies; alleged conduct by the defendants' solicitor, even if established, was not relevant to the defendants' entitlement to increased/indemnity costs and issues between solicitor and client belonged to separate proceedings or disciplinary channels; therefore the re‑call application and r 9.75 relief were dismissed.

Court Disposition

Application to recall the 24 March 2009 judgment dismissed; leave granted to file the re‑call application out of time.

Orders

  • Leave granted to file the application to recall the 24 March 2009 judgment out of time.
  • Application to recall the 24 March 2009 judgment and application under r 9.75 dismissed.