MCLANAHAN v THE NEW ZEALAND REGISTERED ARCHITECTS BOARD [2017] NZCA 606 [18 December 2017]

MCLANAHAN v THE NEW ZEALAND REGISTERED ARCHITECTS BOARD [2017] NZCA 606[18 December 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA529/2016[2017] NZCA 606BETWEEN JEREMIAH MCLANAHAN AND E-LYNTANAppellantsAND THE NEW ZEALAND REGISTEREDARCHITECTS BOARDRespondentSTEPHEN MCDOUGALLSecond RespondentCourt: French, Winkelmann and Brown JJCounsel: H N McIntosh for AppellantsT Sissons for First RespondentJ M Morrison for Second RespondentJudgment:(On the papers)18 December 2017 at 11.30 amJUDGMENT OF THE COURTThe application for recall is granted in part.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] The appellants apply for recall of the judgment of this Court delivered on17 October 2017.1 In that judgment we quashed the decision of the first respondent,1 McLanahan v The New Zealand Registered Architects Board [2017] NZCA 458.the New Zealand Registered Architects Board (the Board), regarding 23 heads ofcomplaint that the Board had dismissed solely in reliance on r 62(a) of the RegisteredArchitects Rules 2006 (the Rules). We held that the ground of dismissal in r 62(a) —that there is no applicable ground of discipline — was jurisdictional in nature and didnot involve an evidential evaluation. Because that issue was determinative of theappeal, we did not go on to address the other grounds of appeal put forward by theappellants.[2] Two reasons are advanced for the recall.[3] The first concerns the correct interpretation of r 50 of the Rules, whichprohibits an architect undertaking professional work before the "terms ofappointment" are agreed with the client. The appellants' complaint of a breach of r 50was one of the 23 heads of complaint that was referred back to the Board forconsideration.[4] In applying for recall, the appellants make the point that, on its reconsiderationof that particular complaint, the Board will be bound by the ruling of the High Courtas to the interpretation of r 50.2 Given that the High Court's interpretation waschallenged on appeal, they submit it would be preferable for this Court to address theinterpretation issue prior to the Board's reconsideration.[5] We accept there is merit in the appellants' contention and that it is a matterwarranting the recall of the judgment so that the issue of interpretation of the rule isresolved definitively before the matter is further considered by the Board.3Accordingly, we grant the application for recall on this basis.[6] The second basis for the recall application concerns the reference at [67] of ourjudgment to an "evidential threshold" in the context of a discussion of r 62(c) of theRules. The appellants question whether the reference to "evidential" was a slip andinquire whether another meaning might have been intended.2 McLanahan v The New Zealand Registered Architects Board [2016] NZHC 2276 at [154].3 We consider this fits into the third category set out in Horowhenua County v Nash (No 2) [1968]NZLR 632 (SC) at 633 of "some other very special reason justice requires that the judgment berecalled".[7] There was no slip in the language at [67]. To the extent it was advanced onthat basis, the application for recall is declined.Result[8] The application for recall is granted in part.Solicitors:Gibson Sheat, Wellington for AppellantsLundons Law, Blenheim for First RespondentRainey Collins, Wellington for Second Respondent