Armitage v Stylo Medical Services Limited

[2025] NZCA 249

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA741/2024
 [2025] NZCA 249

BETWEEN	ROSANNE ARMITAGE Applicant
AND	STYLO MEDICAL SERVICES LIMITED First Respondent SHEN TAT OOI Second Respondent GRACE REPILING AND RELEVELING LIMITED (REMOVED) Third Respondent AUCKLAND COUNCIL Fourth Respondent MICHAEL PERCY FIELD First Third Party

Court:	Mallon and Cooke JJ
Counsel:	Applicant in person R O Parmenter for First and Second Respondents K M Wakelin for Fourth Respondent
Judgment: (On the papers)	17 June 2025 at 12.30 pm

JUDGMENT OF THE COURT

A        The application for leave to appeal is declined.

BThe applicant must pay the first and second respondents costs for a standard application on a band A basis together with usual disbursements.

CThe applicant must pay the fourth respondent costs for a standard application on a band A basis together with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooke J)

1. Ms Armitage seeks leave under s 56(5) of the Senior Courts Act 2016 to appeal a decision of the High Court declining her application to be joined as a party to proceedings between the respondents and Hum Hospitality Ltd (Hum).[1]

   [1]Hum Hospitality Ltd v Stylo Medical Services Ltd [2024] NZHC 2427 [judgment under appeal].

2. The proceedings have a long history.  They relate to a lease of property situated in Grafton, Auckland between Stylo Medical Services Ltd (Stylo) and Hum.  Associate Judge C B Taylor declined Ms Armitage’s application to be joined as co‑plaintiff in the proceedings on the basis that:[2] 

   (a)her argument that she was a tenant was untenable, as the tenant was Hum;

   (b)the fact that she was a guarantor of Hum’s obligations did not provide a basis for joinder; and

   (c)her presence before the Court was not necessary.

   [2]At [18].

3. By application dated 25 September 2024, Ms Armitage sought leave from the High Court to appeal against this decision.  That application was referred by the Registrar to Gordon J under r 5.35A of the High Court Rules 2016.  Gordon J held that Ms Armitage had endeavoured to represent Hum on a number of occasions and she had been directed not to do so, and that her application was an abuse of process that should be struck out under r 5.35B.[3]

   [3]Hum Hospitality Ltd v Stylo Medical Services Ltd HC Auckland CIV-2016-404-636, 21 October 2024 (Minute of Gordon J).  We consider that the correct rule to strike out the application as an abuse of process was likely to have been r 7.42A, rather than r 5.35B of the High Court Rules 2016.

4. Ms Armitage then sought to challenge that decision in this Court.

5. After considering the procedural position, this Court directed in a minute dated 13 February 2025 that the notice of appeal filed in this Court by Ms Armitage should be treated as an application for leave to appeal under s 56(5) of the Senior Courts Act and it would be addressed on the papers.  This was on the basis that the decision of Gordon J declined to grant leave for the purpose of s 56(3).  The parties have filed submissions accordingly.

Assessment

1. The principles relevant to an application for leave to appeal under s 56 of the Senior Courts Act are well settled.[4]  The requirement to obtain leave operates as a filtering mechanism to ensure that unmeritorious appeals of interlocutory orders are not advanced.  A high threshold exists.  The applicant must show an arguable error of fact or law of public importance, or otherwise of sufficient importance to warrant a further appeal.  The ultimate question is whether the interests of justice are served by granting leave.

   [4]Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].

2. Ms Armitage argues that the Court was wrong in finding that she was not a tenant.  The terms of her guarantee provided that the guarantor was treated as the tenant for all purposes, the Court erred in failing to take into account those obligations when considering joinder, and in finding that her presence was not necessary as a consequence.

3. We do not accept these arguments.  We agree with the submissions for the first, second and fourth respondents that the application for leave to appeal is without merit — essentially because the application by Ms Armitage to be joined as a plaintiff has little merit for the reasons set out in the judgment under appeal.  The joinder application also appears to be an attempt to circumvent directions previously given that Ms Armitage not represent Hum in the proceedings, as Gordon J found.[5]  Moreover, even if there was some arguable point to be advanced by Ms Armitage, the general circumstances, including the many related proceedings and Ms Armitage’s previous attempts to become involved, would not warrant the further cost and delay that an appeal to this Court would cause.  For this reason, the interests of justice would not be served by the grant of leave.

   [5]Minute of Gordon J, above n 3, referring to Stylo Medical Services Ltd v Hum Hospitality Ltd [2022] NZHC 1683 at [41].

4. As to costs, the fourth respondent asked to be heard separately.  Given the standard approach to costs in this Court, that course is not warranted. 

Result

1. The application for leave to appeal is declined.

2. The applicant must pay the first and second respondents costs for a standard application on a band A basis together with usual disbursements.

3. The applicant must pay the fourth respondent costs for a standard application on a band A basis together with usual disbursements.

Solicitors:
Winston Wang & Associates, Auckland for First and Second Respondents
Auckland Council, Auckland for Fourth Respondent