ETG HOLDINGS LTD V FIRST EASTERN HOLDINGS LTD HC AK CIV-2012-404-000228

ETG HOLDINGS LTD V FIRST EASTERN HOLDINGS LTD HC AK CIV-2012-404-000228

The application to recall was dismissed because none of the r 11.9 grounds were made out: the court had considered the evidence about the shares, the applicants were effectively re-arguing matters or seeking to address issues they could have raised earlier, and recall cannot be used as a substitute for appeal; enforcement concerns supported the original approach.

Citation
openlaw-a2b56075_6477_4fd3_91da_a81321ce5433.pdf
Parties
First Plaintiff: ETG HOLDINGS LIMITED; Second Plaintiff: ETG BROKERAGE LIMITED; First Defendant: FIRST EASTERN HOLDINGS LIMITED; Second Defendant: FE INVESTMENTS LIMITED; Third Defendant: THATT KIONG SHIM; Counterclaim Defendant: TONY SUN
Court
High Court
Jurisdiction
New Zealand
Judgment Date
19 November 2012
Procedural Posture
High Court Civil / Application to Recall Judgment Following Order for Security for Costs
Outcome
Application to recall dismissed
Legal Topics
Recall of Judgment, Security for Costs, Enforceability of Orders, Contempt as Enforcement
Civil Procedure Costs Enforcement Recall of Judgment Security for Costs Enforceability of Orders Contempt as Enforcement

Case Brief

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Parties

ETG HOLDINGS LIMITED

First Plaintiff

ETG BROKERAGE LIMITED

Second Plaintiff

FIRST EASTERN HOLDINGS LIMITED

First Defendant

FE INVESTMENTS LIMITED

Second Defendant

THATT KIONG SHIM

Third Defendant

TONY SUN

Counterclaim Defendant

Procedural Posture

High Court Civil / Application to Recall Judgment Following Order for Security for Costs

Legal Issues

  1. 1 Whether the judgment should be recalled under r 11.9 of the High Court Rules
  2. 2 Whether the court failed to take into account evidence that shares were unencumbered and could meet security
  3. 3 Whether concerns about enforceability of a security order justify recall

Ratio Decidendi

The application to recall was dismissed because none of the r 11.9 grounds were made out: the court had considered the evidence about the shares, the applicants were effectively re-arguing matters or seeking to address issues they could have raised earlier, and recall cannot be used as a substitute for appeal; enforcement concerns supported the original approach.

Court Disposition

Application to recall dismissed

Orders

  • Application to recall dismissed with costs to the respondents on a 2B basis for the memorandum filed