MAILLEY v SHAW [2021] NZHC 2876

MAILLEY v SHAW [2021] NZHC 2876

The Court held the Associate Judge properly rejected the recusal applications on established principles; the second recusal application provided no new arguable grounds and did not require recall of the strike‑out costs judgment or the minute, so both recall applications were dismissed and costs awarded to the defendants.

Citation
[2021] NZHC 2876
Parties
First Plaintiff: Martin Mailley; Second Plaintiff: Sabrina Nutarelli; First Defendant: Antony Shaw; Second Defendant: Tony Ellis (Discontinued); Third Defendant: The New Zealand Law Society
Court
High Court
Jurisdiction
New Zealand
Judgment Date
28 October 2021
Procedural Posture
Civil / Interlocutory Applications for Recall of Costs Judgment and Minute; Review of Strike Out Costs Judgment
Outcome
First and second applications to recall the strike‑out costs judgment and minute dismissed; defendants entitled to costs
Legal Topics
Recall of Judgment, Recusal, Apparent Bias, Strike Out, Natural Justice, Costs Orders
Civil Procedure Judicial Conduct and Recusal Costs Law Administration of Justice Recall of Judgment Recusal Apparent Bias Strike Out +2 more

Case Brief

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Parties

Martin Mailley

First Plaintiff

Sabrina Nutarelli

Second Plaintiff

Antony Shaw

First Defendant

Tony Ellis (Discontinued)

Second Defendant

The New Zealand Law Society

Third Defendant

Procedural Posture

Civil / Interlocutory Applications for Recall of Costs Judgment and Minute; Review of Strike Out Costs Judgment

Legal Issues

  1. 1 Whether the strike-out costs judgment and accompanying minute should be recalled
  2. 2 Whether the Associate Judge was required to consider the second recusal application before delivering the costs judgment
  3. 3 Whether the Associate Judge's conduct disclosed apparent bias or judicial misconduct

Ratio Decidendi

The Court held the Associate Judge properly rejected the recusal applications on established principles; the second recusal application provided no new arguable grounds and did not require recall of the strike‑out costs judgment or the minute, so both recall applications were dismissed and costs awarded to the defendants.

Court Disposition

First and second applications to recall the strike‑out costs judgment and minute dismissed; defendants entitled to costs

Orders

  • First recall application (13 July 2021) dismissed without referral to Associate Judge Andrew
  • Second recall application (14 July 2021) dismissed without referral to Associate Judge Andrew