Court says applicants’ arguments were in essence an attempt to relitigate its earlier decision
The Supreme Court of New Zealand has dismissed an application to recall its earlier judgment refusing leave to appeal in a dispute over the disposition of a family bach through a family trust.
In Gatfield v Hinton [2026] NZSC 141, the applicants sought recall of the Supreme Court’s 22 May 2026 judgment, which dismissed their application for leave to appeal from a Court of Appeal decision. The Court of Appeal had upheld orders referring the proceedings to mediation and, if mediation did not resolve the dispute, to arbitration.
The underlying challenge concerned the use of an alternative dispute resolution process under s. 145 of the Trusts Act 2019. The Supreme Court had refused leave because it considered the proposed appeal had insufficient prospects of success and the applicants had not identified anything suggesting the Court of Appeal erred in its assessment of the statutory scheme.
In seeking recall, the applicants argued that the Supreme Court had provided inadequate reasons and had failed to engage with their grounds for leave. They said the court needed to address their proposed constitutional framework, including issues concerning open justice, the respondent’s judicial status, freedom of expression, the right to a public trial, and the New Zealand Bill of Rights Act 1990.
The applicants also raised the associate judge's powers and relied on Reihana v Judicial Conduct Commissioner [2026] NZCA 76, (2026) 27 PRNZ 37, which they described as a “recent decision of high relevance.” They further relied on differences between the wording of ss. 145 and 148 of the Trusts Act and on s. 10(1) of the Arbitration Act 1996. They also argued that the Supreme Court had not addressed their appeal concerning costs in the Court of Appeal.
The Supreme Court rejected the adequacy of reasons as a basis for recall. It said reasons for refusing leave may be stated briefly and in general terms, and the court may focus on what it considers the gravamen of the leave application.
The court said its earlier judgment had considered the constitutional rights raised by the applicants and their reliance on the respondent’s then-judicial status. Although questions concerning the scope and application of s. 145 could raise issues of general or public importance, the court had found nothing that called into question the Court of Appeal’s assessment of the statutory power.
The court said the applicants’ arguments were, in essence, an attempt to relitigate the earlier decision and did not provide a basis for recall.
It also found that Reihana did not substantively alter the position and that nothing turned on the wording difference between ss. 145 and 148 when read in context. Section 10(1) of the Arbitration Act did not assist because the High Court had ordered the arbitration under s. 145, meaning no question arose about an arbitration agreement being contrary to public policy.
The court also held that its omission to address Court of Appeal costs did not amount to a very special reason, or a reason for which justice required recall, given the proposed appeal’s insufficient prospects of success. Ultimately, the Supreme Court dismissed the recall application.
