UNIVERSITY OF CANTERBURY V THE INSURANCE COUNCIL OF NEW ZEALAND INCORPORATED CA127/2013 [2013] NZCA 609

UNIVERSITY OF CANTERBURY V THE INSURANCE COUNCIL OF NEW ZEALAND INCORPORATED CA127/2013 [2013] NZCA 609 [3 December 2013]IN THE COURT OF APPEAL OF NEW ZEALANDCA127/2013[2013] NZCA 609BETWEEN UNIVERSITY OF CANTERBURYAppellantAND THE INSURANCE COUNCIL OF NEWZEALAND INCORPORATEDFirst RespondentAND CHRISTCHURCH CITY COUNCILSecond RepondentAND BODY CORPORATE 423446 (OXFORDBODY CORPORATE)Third RespondentCourt: Harrison, White and Asher JJCounsel: T C Weston QC, D A Webb and D McBeath for AppellantD J Goddard QC and T A Spinka for First RespondentD J S Laing for Second RespondentC A McVeigh QC and S T Cottrell for Third RespondentJudgment:(On the papers)3 December 2013 at 3.15 pmJUDGMENT OF THE COURTA The application for recall of this Court's judgment [2013] NZCA 471 isdismissed.B The appellant is ordered to pay the first respondent costs on a band A basis on a standard application for recall together with usual disbursements.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] On 8 October 2013 this Court dismissed an appeal by the University of Canterbury against a decision delivered by Panckhurst J in the High Court at Christchurch on 4 February 2013,1 declaring unlawful a policy adopted by Christchurch City Council enabling it to require building owners to strengthen existing buildings following earthquake damage to a capacity of up to 67 per cent of the current building code requirements.2[2] The University has applied for leave to appeal against the decision and contemporaneously applied to recall our judgment on the grounds that this Court either failed to address a substantive argument which was put to it or misstated ormisunderstood the University's argument. It is noted that in his written submissionson appeal Mr Weston QC made a similar criticism of the High Court judgment.[3] The first respondent, the Insurance Council of New Zealand Inc (the ICNZ), opposes.Principles[4] The principles relating to recall of judgments are well settled. The jurisdiction is to be exercised sparingly. An applicant must satisfy a very high threshold. Significantly, this Court has previously held:3[34] ... that the Court's reasons and the issues it chooses to address arewithin the discretion of the Court. It will often be unnecessary to deal with all of the submissions presented because of the way in which a case is finally resolved. The Court plainly is able to address submissions in the manner it chooses. While a decision may be recalled where a material issue properly put before the Court is not addressed, excluding a slip or minor error, the cases in which justice will require a recall on this basis are likely to be rare....[40] The applicant's argument, on analysis, is a criticism that the Court has misunderstood Unison's argument and so has conflated the two issues. Accepting for the purposes of argument (but without deciding) that the applicant is right about what has happened, any omission has arisen because1 University of Canterbury v The Insurance Council of New Zealand Inc [2013] NZCA 471.2 The Insurance Council of NZ Inc v Christchurch City Council [2013] NZHC 51, [2013] NZRMA 113.3 Unison Networks Ltd v Commerce Commission [2007] NZCA 49.there has been a misunderstanding and the process issue treated as a subset of the legality issue. If we were wrong in doing that, the matter is properly remedied on appeal. This is not an omission that should be dealt with by way of recall but rather would be an error.[5] The ultimate question is whether the decision is correct: if incorrect, the losing party is entitled to apply for leave to appeal.4Decision[6] In support of the University's application, Mr Weston advances these grounds.[7] First, Mr Weston submits that the University put its case on the basis that the definition of an earthquake prone building in s 122(1) of the Building Act 2004 (the Act) identifies unsafe buildings as a first step. The next and secondary step is for the territorial authority to act under s 124 to ensure that the building is made safe on a case by case basis. His written submission was that the first limb of the statutorydefinition of an earthquake proof building does not "mechanistically determine the extent of the remediation" but rather the s 122(1) definition is a threshold or triggering device to identify unsafe buildings. Accordingly Mr Weston says, bycharacterising the University's argument as one of whether s 122(1) should be interpreted conjunctively or disjunctively, the Court failed to address its argument at all.[8] This submission is misdirected. The way the University framed its written submissions and Mr Weston developed his argument orally was analogous to promoting a disjunctive interpretation. The transcript of argument before us records that Mr Weston said this:... my submissions are largely written on the basis that there is this broad divide between the first and second limb. But what my learned friend is now doing and I will come to this ... is to try and bring the two together and I will be addressing that;4 R v Nakhla (No 2) [1974] 1 NZLR 453 (CA) at 456 and Calibre Financial Services Ltd v Mortgage Administration Services (Calibre) Ltd [2013] NZCA 565 at [3].[9] Moreover, at one stage Mr Weston expressly agreed with the Court that the two limbs in s 122 were to be read conjunctively; and described s 122 as being directed towards triggering the remedial provisions of s 124. Both counsel addressed the question of whether a conjunctive or disjunctive interpretation was appropriate.It cannot be claimed that the Court's characterisation of its argument in these termstherefore led to its failure to address the argument at all.[10] In any event we are satisfied that the Court's construction of s 122 addresses the substance of the University's argument.5 The University has a statutory right to apply for leave to appeal, which it has exercised, against our decision.[11] Second, Mr Weston adds that contrary to para [35] of the judgment the University did not argue that a territorial authority could:... issue a written notice in relation to a building that was dangerous in an earthquake whether nor not it met the definition of earthquake prone.He says that the University's argument was to the opposite.[12] In effect, Mr Weston argues that, once a building has been found to be earthquake prone under s 122, the only step required by the council is to consider each case on an independent or individual basis under s 124. For that reason,councils should be allowed to set their own standards for addressing that "danger",requiring work above the statutory standards set in s 122.[13] This submission was squarely considered and dismissed in the judgment as follows:[32] However, the legislature has chosen in subpt 6 to set out specific definitions of dangerous, earthquake-prone and insanitary buildings. Section 122 defines an earthquake-prone building in a precise way, and the section contemplates that there will be regulations stating what will be a moderate earthquake. It has taken this precise course, rather than leaving the definition of "dangerous" and "earthquake-prone" undefined. There is noinconsistency with the purpose of enabling people to safely use buildings, in treating s 122(1)(a) and (b) as conjunctive requirements setting out a clear and predictable test....5 University of Canterbury v The Insurance Council of New Zealand Inc, above n 1, at [24]–[34].[36] This submission overlooks the overarching requirement under s124(1) that the territorial authority must be satisfied that a building is "dangerous, earthquake-prone, or insanitary " and the separate definitionsof those words provided at ss 121, 122 and 123 of each of these types ofbuilding. The words of s 124(1)(c)(i) enabling the territorial authority togive written notice to reduce or remove "the danger" refer back to thoseinitial words "... dangerous, earthquake-prone ...". The words "the danger"are a compression referring to the concepts of both "dangerous" and"earthquake-prone".[14] Third, Mr Weston submits that the Court failed to address factual evidence adduced in order to place s 122(1)(a) of the Act in context. Para [10] of the substantive judgment reads:There was affidavit evidence filed on behalf of the parties recording the background, the history of the 2010 policy, the efficacy of the standard and the City Council's approach. There were also affidavits filed as to theimpacts upon the parties and the effects on individual building owners. However, none of this factual material was the subject of detailed oral submissions before us, and like Panckhurst J we see no need to refer to the detailed history or the practical merits of the policy. If Parliament has clearly imposed a standard, it is not for the courts to second-guess the merits of that standard.[15] The Court did not state that it had not received any submissions at all on the evidence. Instead, it stated that oral submissions on the point were limited. It was plain that the Court regarded the affidavit evidence as being of little assistance in its exercise of statutory construction.[16] Fourth, Mr Weston submits that this statement from the judgment dealing with costs is incorrect:[53] The City Council did not support the appeal and in the end did notoppose the cross-appeal and there is no order for costs against it.[17] We agree with Mr Goddard QC for the ICNZ that there is no issue arising from this statement which might warrant recall of the costs orders given that the parties had reached an agreed position on costs. There is no issue as to costs arising from the judgment. Accordingly this ground fails also.[18] The University's application is misconceived. A supplementarymemorandum filed by Mr Weston only serves to confirm that it is an attempt toreargue and challenge the substantive grounds for this Court's decision. TheUniversity fails to recognise the role of oral argument in determining an appeal. Written submissions are also relevant but they are not decisive where this Court issatisfied that a party's case has been developed or recast during interchanges withcounsel. What matters is whether the Court's construction of the relevant statutoryprovisions is correct, taking account of the principal arguments advanced by both sides.[19] The University's right to apply for leave to appeal to the Supreme Court isnot adversely affected in any sense by the defects and omissions which it sayscharacterise this Court's judgment. Mr Weston's argument falls well short of thethreshold of establishing a very special reason which justice requires if a judgment is to be recalled.Result[20] The application for recall is dismissed.[21] The parties have been on notice since this Court's decision in Erwood v Maxted that they are at risk of orders for increased indemnity costs where an application for recall is without merit.6 The University is fortunate that the ICNZ did not seek increased or indemnity costs. The University is ordered to pay the ICNZ costs on a band A basis on a standard application for recall together with usual disbursements.Solicitors:MDS Law, Auckland for AppellantJones Fee, Auckland for First RespondentSimpson Grierson, Wellington for Second RespondentGCA Lawyers, Christchurch for Third Respondent6 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23].