In the October Supreme Court decision in Gatfield v Hinton the Supreme Court dismissed the application for recall of the Supreme Court’s May 2026 decision discussed in Coercive arbitration orders in a trust proceeding. At the heart of the matter is a challenge to the decision that a dispute over the disposition of a family back can be referred to alternative dispute resolution pursuant to section 145 of the Trusts Act 2019. As noted at [2] “… The application for leave to appeal was dismissed on the basis the present case has insufficient prospects of success. The Court was of the view that, in essence, the applicants had not raised anything suggesting that the Court of Appeal erred in its assessment, which followed a careful analysis of the statutory scheme.”
The basis for the recall application is set out at [3] and [5] as follows:
“In seeking a recall, the applicants say that the judgment declining leave has not provided adequate reasons and does not engage with the grounds of leave advanced. In particular, the contention is that the Court needed to address the constitutional framework advanced by the applicants. In developing the submissions in support of the recall application, the applicants say, among other matters, that the Court needed to address the various aspects of open justice they say are raised by the application for leave. Those aspects include the respondent’s judicial status, the right to freedom of expression, the right to a public trial and the implications of the New Zealand Bill of Rights Act 1990.“
The view of the Supreme Court is stated at [8] in the following terms:
“[3] The leave judgment also acknowledged that the issues raised by the scope of s 145 and its application may raise questions of general or public importance in terms of s 74(2)(a) of the Senior Courts Act 2016. But we considered, as the leave judgment states, that nothing raised called into question the Court of Appeal’s assessment of the exercise of the statutory power in issue. No disrespect to the arguments raised by the applicants was intended by addressing these matters briefly and in general terms. But in our view, none of those arguments raised a sufficiently arguable case, meaning that it was not in the interests of justice for the Court to hear the proposed appeal. The applicants’ arguments on these matters are in essence an attempt to relitigate this earlier decision. That does not provide a basis for recall.
…
[5] Second, the applicants make something of the use of the word “refer” in s 148 of the Trusts Act — a provision which was not brought to the Court’s attention. In particular, they submit that a comparison can be drawn between the use of the word “refer” in s 148 and the use of the word “submit” in s 145(1)(b). Third, they contend that counsel did not direct the Court to s 10(1) of the Arbitration Act 1996, which states that a matter the parties have agreed to submit to arbitration is not arbitrable if the arbitration agreement is contrary to public policy. Finally, the applicants submit that the Court did not address their appeal against costs in the Court of Appeal.”
References:
- Gatfield v Hinton [2026] NZSC 60
- Gatfield v Hinton [2026] NZSC 141
- Gatfield v Hinton [2026] NZCA 17
- Gatfield v Hinton [2024] NZHC 1712
- Trusts Act 2019, s 145
- Arbitration Act 1996, s 10
- Senior Courts Act 2016, s 77
Discussion
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