ZHANG v TELCO ASSET MANAGEMENT LIMITED [2020] NZCA 516

ZHANG v TELCO ASSET MANAGEMENT LIMITED [2020] NZCA 516 [21 October 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA18/2020[2020] NZCA 516BETWEEN YAN ZHANGAppellantAND TELCO ASSET MANAGEMENTLIMITEDRespondentCA150/2020BETWEEN YAN ZHANGAppellantAND TELCO ASSET MANAGEMENTLIMITEDRespondentCourt: Kós P and Courtney JCounsel: Appellant in PersonT P Cleary for RespondentJudgment:(On the papers)21 October 2020 at 10.30 amJUDGMENT OF THE COURT[Recall]The application for recall is declined.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)[1] In a decision delivered on 8 June 2020 this Court dismissed Mr Zhang'sapplication for leave to appeal a substantive decision of the Employment Court andthe related costs decision.1 In a separate decision delivered on 1 September 2020the respondent, Telco Asset Management Limited, was awarded costs on theapplication.2 Mr Zhang has applied to have the costs decision recalled (the CostsDecision).[2] The circumstances leading up to the delivery of the Costs Decision are asfollows. Telco applied for costs in accordance with the Court of Appeal (Civil) Rules2005. It calculated the costs at a total of $11,233. It did not seek any disbursements.Telco's memorandum seeking costs was received by the Court on 15 June 2020. On18 August 2020 the Registry forwarded the memorandum to Mr Zhang, asking for aresponse within 10 working days. Mr Zhang responded the following day by email,giving reasons that costs should not be paid. He did not indicate that he wished to fileany further submissions.[3] On 28 August 2020 the Registry advised Mr Zhang that a decision on the costsapplication was to be delivered on 1 September 2020. The following exchangefollowed between Mr Zhang and the Registry:(a) On 28 August 2020 Mr Zhang emailed the Registry saying "I will havea further response within 10 working days on next Monday, is that ok?"(b) The Registry responded "A further response to what sorry?"(c) Mr Zhang emailed "As to costs application from Telco, the deputyregistrar emailed us on 18 August, said I have 10 working days forresponse, I have a further response due on next Monday."(d) The Registry replied "Your response received via email on 19 August2020 to the respondent's memorandum seeking costs was referred to1 Zhang v Telco Asset Management Limited [2020] NZCA 223.2 Zhang v Telco Asset Management Limited [2020] NZCA 380.the Judge last week. I took that email as your response to theapplication.Is there anything else you would like the Judge to consider?"(e) Mr Zhang said "Yes, I have more information for the Judge to consider,my name is Yan Zhang, not "Jan Zhang" on the memorandum so thatthe memorandum from the respondent should be dismissed, as there isno appellant called Jan Zhang. And there is more information onMonday as I am still working on it."(f) The Registry responded "Because the matter on costs has already beenheard on the papers by the Judges, you must seek leave to file anyfurther submissions in respect of costs."[4] Then, on 31 August 2020, Mr Zhang filed a one-page document entitled "Thefurther response of opposing the costs memorandum from Telco" in which he madefive points in support of his assertion that costs ought not be granted. The furtherresponse memorandum was not referred to the panel. The Costs Decision was releasedon 1 September 2020.[5] It is only in exceptional circumstances that a judgment of the Court will berecalled. The recognised categories in which that might happen are that (1) since thehearing a relevant statute of regulation has changed, or a relevant judicial decision ofhigher authority has been delivered; (2) counsel failed at the hearing to direct the Courtto a legislative provision or an authoritative and plainly relevant decision or (3) forsome other very special reason justice requires that the judgment be recalled.3[6] In this case the only basis on which Mr Zhang could seek to have the judgmentrecalled is the third category, that there is some very special reason that justice requiresthe judgment to be recalled. However, justice does not require the recall of thejudgment in this case. Mr Zhang was provided with the opportunity to respond to3 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR76 at [2], citing Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.Telco's memorandum seeking costs and he did so without any indication that hewanted to add anything to that response. Mr Zhang's response was taken into accountand explicitly considered in the Costs Decision.[7] The Registry correctly advised Mr Zhang that if he wished to make furthersubmissions he would need leave to do so but Mr Zhang did not pursue that course.[8] We would note that, in any event, the points that Mr Zhang makes in his furthermemorandum could not possibly have altered the Court's decision.[9] The application for recall is dismissed.Solicitors:Charles McGuinness Barrister and Solicitor Ltd, Wellington for Respondent