STEPHEN GILBERT ANDERSON v NZI INTERNATIONAL ACCEPTANCES LIMITED, NZI SECURITIES LIMITED AND NZI FINANCES LIMITED [2022] NZCA 167

STEPHEN GILBERT ANDERSON v NZI INTERNATIONAL ACCEPTANCES LIMITED, NZI SECURITIESLIMITED AND NZI FINANCES LIMITED [2022] NZCA 167 [6 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA242/05[2022] NZCA 167BETWEEN STEPHEN GILBERT ANDERSONApplicantAND NZI INTERNATIONAL ACCEPTANCESLIMITED, NZI SECURITIES LIMITEDAND NZI FINANCES LIMITEDRespondentsCourt: Cooper P and Goddard JCounsel: Applicant in personT G H Smith for Interested PartyJudgment:(On the papers)6 May 2022 at 9 amJUDGMENT OF THE COURTThe application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Cooper P)[1] On 16 March 2006 this Court dismissed an appeal by Mr Anderson against adecision of Chisholm J dated 20 October 2005.1[2] Mr Anderson now seeks that the judgment of this Court be recalled.The application is opposed by IAG New Zealand Ltd, an interested party.1 Anderson v NZI International Acceptances Ltd CA242/05, 16 March 2006.[3] This Court's approach to applications for the recall of judgments in civilproceedings was set out in Erwood v Maxted, in the following terms:2[23] This Court is concerned with the proliferation of unjustifiedapplications to recall judgments and has agreed upon the following guidelinesto deal with such applications.(a) Accidental slips or omissions(i) Any accidental slip or omission may be corrected under r 8 ofthe Court of Appeal (Civil) Rules 2005.(ii) Where the parties are agreed that an error or omission whichfalls within r 8 should be remedied, a joint memorandum may be filedfor consideration by the Court.(iii) Where there is no agreement, or where the Court directs,a formal application is required in accordance with the process set outin (c) below.(b) Applications to recall judgments not falling within r 8(i) Where a party seeks to recall a judgment not falling withinr 8, the criteria set out in Horowhenua County v Nash (No 2)[1968]NZLR 632 at p 633 (as confirmed by this Court in Unison NetworksLimited v Commerce Commission [2007] NZCA 49) are to befollowed and will be strictly applied.(ii) Applications which merely seek to relitigate matters alreadyconsidered, or to challenge substantive findings of fact and law, willnot be entertained. Reference may usefully be made to NgahuiaReihana Whanau Trust v Flight CA23/02 26 July 2004; and Faloon vCommissioner of Inland Revenue (2006) 22 NZTC 19,832.(c) Process(i) Where a formal application is required in terms of theseguidelines:(a) it must be made on notice to all other parties;(b) any party served with an application need not respondunless directed to do so by the Court;(c) the Court will deal with the application on the papersor by oral hearing in terms of r 51(6);(d) the Court will usually give only brief reasons for itsdecision on any application;2 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466.(e) any further application seeking to recall a decisionrefusing an application to recall will usually be dealtwith summarily; and(f) the Court will consider ordering increased orindemnity costs against parties and/or counselbringing unmeritorious applications.[4] In Unison Networks Ltd v Commerce Commission this Court observed:3[10] The principles governing recall of a judgment are well settled and areset out in [Horowhenua County]:Generally speaking, a judgment once delivered must stand forbetter or worse subject, of course, to appeal. Were it otherwisethere would be great inconvenience and uncertainty. There are,I think, three categories of cases in which a judgment notperfected may be recalled — first, where since the hearing therehas been an amendment to a relevant statute or regulation or anew judicial decision of relevance and high authority; secondly,where counsel have failed to direct the Court's attention to alegislative provision or authoritative decision of plainrelevance; and thirdly, where for some other very special reasonjustice requires that the judgment be recalled.[5] The basis of Mr Anderson's present application is simply that he, acting forhimself in 2006, failed to raise various arguments that he now says were available tohim. He says these arguments would have enabled him to make a claim that NZI Bankhad knowingly or unlawfully acted in breach of s 90 of the Property Law Act 1952.Mr Anderson says that, as a consequence, the subsequent sale of the mortgagedproperty was unlawful.[6] That argument is plainly unable to bring Mr Anderson within the first andsecond grounds for recall discussed in Horowhenua County. He can only seek recallunder the third category, which requires him to establish that there is some "other veryspecial reason" that the judgment must be recalled in the interests of justice. A desirenow, some 16 years later, to recall a judgment because of arguments available but notpursued at the time does not amount to a "very special reason" requiring the Court'sjudgment to be recalled.3 Unison Networks Ltd v Commerce Commission [2007] NZCA 49.[7] The application for recall is declined.Solicitors:IAG New Zealand Ltd, Auckland as Interested Party