Astra Construction Group Limited v NZ Astra Construction Limited (in liquidation)

[2025] NZHC 2127

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2025-404-001065

[2025] NZHC 2127

BETWEEN

ASTRA CONSTRUCTION GROUP LIMITED
Applicant

AND

NZ ASTRA CONSTRUCTION LIMITED (IN LIQUIDATION)

Respondent

Hearing:	On the papers
Appearances:	No appearance for the Applicant K Cocks for the Respondent
Judgment:	31 July 2025

JUDGMENT OF ASSOCIATE JUDGE COGSWELL

This judgment was delivered by me on 31 July 2025 at 4.00 p.m. pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date.......................................

Solicitors:

Waterstone, Auckland

ASTRA CONSTRUCTION GROUP LTD v NZ ASTRA CONSTRUCTION LTD [2025] NZHC 2127 [31 July 2025]

Introduction

[1]                 Astra Construction Group Limited (ACGL) has applied to set aside a statutory demand issued by NZ Astra Construction Limited (in liq) (NZ Astra).

[2]                 At the first call of the application two of ACGL’s directors sought to represent it. I advised them that if they wanted to represent ACGL they would need to make a formal application for leave to do so.

[3]I set a timetable. Ms Wu1 has sought leave, which is opposed by NZ Astra.

The application and the parties’ positions

[4]Ms Wu seeks to represent ACGL on the following grounds:

(a)the board of ACGL has authorised Ms Wu to represent it;

(b)Ms Wu has direct personal knowledge of the background to this dispute;

(c)the matter concerns a payment dispute which does not involve any legal or technical complexity;

(d)Ms Wu holds a Master of Professional Accounting degree from Monash University in Australia which included a business law component, such that she considers she has a sound understanding of legal processes, particularly in the areas of business and commercial law;

(e)the applicant lacks the financial resources to engage counsel and requiring the applicant to retain counsel would impose an unreasonable burden on ACGL;

(f)if the application is declined, ACGL will suffer substantial procedural prejudice including the risk of being placed into liquidation.

1      One of ACGL’s two directors and its sole shareholder

[5]                 The application relies on s 181 of the Companies Act 1993, r 5.35  of the High Court Rules and an affidavit from Ms Wu.

[6]NZ Astra opposes leave being granted on the following grounds:

(a)the general rule is that a company is to be represented in Court or in legal proceedings by a barrister and/or solicitor;

(b)there are no exceptional circumstances in this instance that justify a departure from the general rule;

(c)no emergency situation exists in this matter and the director has had ample time to appoint counsel;

(d)ACGL has failed to prove it has insufficient financial capacity to engage counsel;

(e)it denies that Ms Wu has sufficient understanding of law and legal process to represent ACGL;

(f)the director has made inappropriate disclosures in her evidence or failed to include key facts in her affidavit to the Court.

Discussion

[7]                 It is well settled in New Zealand that a company has no right to be represented in the conduct of a case in the High Court except by a barrister or solicitor. The Mannix rule2, as it is commonly known, has been reaffirmed in subsequent decisions of the Court of Appeal and this Court.

[8]                 In Re Mannix the Court noted that there is a residual discretion to allow non- lawyers to appear on behalf of companies, but that discretion is circumscribed by necessity and expedience. The exception is primarily used in situations where counsel is not available, for straightforward matters where the assistance of counsel is not

2      Re G J Mannix [1984] 1 NZLR 309 (CA)

necessary, or where the requirement for counsel would be unduly technical or burdensome. Allowing a company to be represented by a non-lawyer is the exception, and only granted in suitable circumstances.

[9]                 In Jayashree Ltd v The Commissioner of Inland Revenue3 the Court noted that the Court of Appeal had in The Commissioner of Inland Revenue v Chesterfields Preschools Ltd reaffirmed the approach that the Mannix rule may be departed from only in exceptional circumstances.4

[10]              The Court in Jayashree referred also to Keemati Ltd v MR Civil Ltd where the Court set out relevant considerations for the exercise of the Court’s discretion to allow non-lawyers to appear on a company’s behalf, including: the nature of the litigation; the complexities of the case; the extent of the dispute; the point at which audience is sought; the importance of an understanding of the law and a dispassionate consideration of the circumstances; and the need for professional objectivity.

[11]              I have considered Ms Wu’s application keeping these and other relevant factors in mind.

Nature of the litigation and the complexity of the case

[12]              I have considered the application to set aside the statutory demand, the evidence filed in support of that application and Ms Wu’s application for leave.

[13]              The background to the dispute is not straight forward. The application has serious potential consequences for ACGL.

[14]              There are a multiplicity of issues to be determined in the application, both legal and factual. Those issues include:

(a)questions of assignment of contractual obligations between NZ Astra and ACGL for various uncompleted projects ACGL became involved in on behalf of NZ Astra;

3 [2023] NZHC 2723.

4 [2013] NZCA 53 at [34].

(b)questions of liability for outstanding suppliers and subcontractors of NZ Astra following ACGL’s involvement in various uncompleted projects of NZ Astra;

(c)claims between ACGL and NZ  Astra  for  the  2/32  Wairiki  Road, Mt Eden project, including issues around AA Insurance;

(d)determining the intermingling of ACGL and NZ Astra’s affairs, including oral agreements as to payment between those parties.

[15]              The background to the dispute involves some legal and factual complexity.   It is not straight forward.

[16]              The Court would be assisted by experienced counsel in the resolution of the application. This factor points against granting leave.

Importance of an understanding of the law and legal processes

[17]              I note the evidence of Mr Botterill for NZ Astra that to date Ms Wu has demonstrated a lack of familiarity with legal processes in the filing of the application to set aside the statutory demand, by referring to authorities which do not appear to exist and a failure to promptly serve the leave application in  terms  of my  orders. Mr Botterill also takes issue with various omissions and inclusions in the affidavit of Ms Wu in support of the leave application.

[18]              The application as framed purports to rely on s 181 of the Companies Act 1993. That section relates to the company being able to appoint an attorney who is able to bind the company to obligations. It is not relevant to this application.

[19]              Similarly, r 5.35 of the High Court Rules is also not relevant to the application. That rule relates to representative claims, not applications to represent a company in litigation.

[20]              That said, whilst there are some errors to date on the part of Ms Wu, overall I do not consider that her lack of legal training would be a significant impediment to her being able to conduct a hearing on behalf of ACGL.

[21]              I consider that the more relevant impediment is that addressed above, namely, dealing expeditiously and adequately with some of the complicated factual and legal issues between the parties.

[22]              Overall, this factor is balanced when considering whether to grant leave, but points away from leave being granted.

Financial ability to engage representation

[23]              Ms Wu has stated that ACGL cannot afford counsel. She has provided no independent support for that submission.

[24]              In order to advance this argument, some independent evidence, such as financial statements or a statement from ACGL’s accountant, should have been provided.

[25]              No such evidence being provided, I dismiss that ground as a factor supporting the leave application.

Prejudice to ACGL

[26]              Ms Wu submits that if application is declined, ACGL will suffer substantial procedural prejudice including the risk of being placed into liquidation.

[27]              I do not accept this ground of application; my timetable orders specifically provide time to ACGL to engage counsel should a leave application be declined.

[28]I dismiss that ground as a factor supporting the leave application.

Decision

[29]              The starting point is that, generally, applications for leave to represent a company are rarely granted. The Court retains a discretion to permit someone who is not a properly qualified lawyer from representing a company in particular circumstances.

[30]              They will usually be situations of emergency or where the matter before the Court is straightforward. Neither applies in this case. The case has some complexity. It is not straight forward. The Court would be assisted by counsel.

[31]              There are also sound policy reasons why a company should be represented by counsel in litigation. In Jayashree the Court cited from Chesterfield Preschools as follows:5

[32]           … A solicitor is ethically constrained to represent the company’s interests, unlike an individual officer who seeks to represent it. Moreover, if a solicitor is involved, the court can generally be satisfied that careful attention has been given to the validity of the proceedings, and that the company’s interests will be adequately presented and protected. Similarly, solicitors recognise the duties and responsibilities that are owed to the court and to the defendant in the conduct of litigation, and are less likely to require indulgences in the rules of procedure or to use court processes for vexatious purposes. The court must also have a solicitor on the record as it cannot exercise its disciplinary powers over a company. If a director or shareholder is representing the company there is a heightened risk that the representative will lack the objectivity that an independent solicitor can bring to the case.

[32]              This factor is an important one. The Court of Appeal in Re Mannix expressed it like this:6

[33]          The reason for the [Mannix] rule…is that it secures that the court will be served by barristers or advocates who observe the rules of their profession, who are subject to a disciplinary code, and who are familiar with the methods and scope of advocacy followed in presenting arguments to the court.

[33]   It follows that I consider that a company may only be represented by non- lawyers in “exceptional” circumstances. No such circumstances exist here.

5      Jayashree at [33].

6      Re Mannix at p6.

Result

[34]I decline Ms Wu’s application to represent ACGL in this proceeding.

[35]I reserve costs on that application.

[36]   The consequence of the declinature of the application is that the timetable orders set out in my Minute of 5 June 2025 at paragraph [13] now apply.

[37]   I reschedule the hearing of the application to set aside statutory demand to 10:00 am on 7 October 2025. ACGL must appear by counsel.

Associate Judge Cogswell