HG Metal Manufacturing Ltd v Navaratnam

[2021] NZHC 2497

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-1955

[2021] NZHC 2497

BETWEEN

HG METAL MANUFACTURING LTD

Applicant

AND

VASHIHARAN NAVARATNAM

First Respondent

SHERINE SANGEETHA NAVARATNAM

Second Respondent

CIV-2020-404-2230

BETWEEN

VASHIHARAN NAVARATNAM

Applicant

AND

HG METAL MANUFACTURING LTD

Respondent

Hearing:	On the papers
Counsel:	T B Fitzgerald for plaintiff V Navaratnam in person
Judgment:	22 September 2021

JUDGMENT OF KATZ J

[Recall application]

This judgment was delivered by me on 22 September 2021 at 2:30 pm pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:           Belly Gully, Barristers and Solicitors, Auckland Copy to:  Vashiharan Navaratnam

HG METAL MANUFACTURING LTD v NAVARATNAM [2021] NZHC 2497

Introduction

[1]    Vashiharan Navaratnam seeks the recall of a judgment I delivered on 28 July 2021 (“the Judgment”) in which I directed the Registrar to enter a Singaporean arbitral award as a judgment against Mr Navaratnam.1

Background

[2]    On 23 April 2020, an arbitrator in Singapore, Mr Wade M. Coriell, delivered an arbitral award (“the Award”) in favour of HG Metal Manufacturing Limited (“HG Metal”). Mr Navaratnam and his wife, Sherine Sangeetha Navaratnam, were ordered to pay HG Metal SGD404,736.10 and USD1,230,187.73, plus interest, pursuant to their obligations as guarantors of the debts of an associated company, Gayathri Steels Pte Ltd.

[3]    Mr and Mrs Navaratnam now live in New Zealand. HG Metal therefore filed an application seeking recognition and enforcement of the Award pursuant to art 35 of sch 1 of the Arbitration Act 1996 (“the Act”).

[4]    Mr Navaratnam (who is self-represented) opposed recognition and enforcement of the Award against him.2 The onus was on Mr Navaratnam to establish that one of the grounds for opposing recognition and enforcement set out in art 36 of sch 1 of the Act applied. He failed to discharge that onus and I directed the Registrar to enter the Award as a judgment against Mr Navaratnam.

[5]    On 26 August 2021, Mr Navaratnam filed a document titled “Interlocutory Application with notice to Set Aside Judgment and or declare that the Arbitral Award entered as judgment cannot be enforced in New Zealand” (“the Application”) together with a supporting memorandum and affidavit. The Application states, amongst other things, that after the Judgment was delivered Mr Navaratnam became aware that the Award and the arbitration agreement had been incorrectly authenticated for the purposes of enforcement in a Convention country. Mr Navaratnam believes that this

1      HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 1920

2      Judgment has already been entered against Mrs Navaratnam, although that is currently under appeal.

provides grounds to have the Judgment set aside. He accepts that he did not raise this argument at the substantive proceeding.

[6]    Mr Navaratnam has foreshadowed that he intends to appeal the Judgment if the Application is unsuccessful. He has apparently sought an extension of the time from the Court of Appeal for filing an appeal, pending the outcome of this Application.

Does this Court have jurisdiction to recall the Judgment?

[7]In substance, Mr Navaratnam is seeking that the Judgment be recalled.

[8]    Rule 11.9 of the High Court Rules 2016 provides that “a Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed”.

[9]    The Judgment was sealed on 12 August 2021. It can therefore no longer be recalled. It is clearly settled law that once a judgment is sealed it must stand, for better or worse, subject of course to any further rights of appeal.3 While there are “certain recognised exceptions” to this rule,4 none are relevant to the present case.

[10]   Nor do I have jurisdiction to “declare that the Arbitral Award entered as judgment cannot be enforced in New Zealand.” I am now functus officio and cannot embark on a reconsideration of the merits of the Judgment. That can now only be done by the Court of Appeal.

The merits of the Application

[11]   Mr Navaratnam’s memorandum and supporting affidavit set out his submissions on the merits of the Application in some detail.

[12]   HG Metal’s solicitors have also filed a comprehensive memorandum setting out why, in their view, there is no merit to the arguments raised. However, their

3      Farquhar v Property Restoration Ltd CA186/89, 27 May 1991 at 5.

4      At 5.

primary position, which I have accepted, is that the Court can no longer recall the Judgment, given that it has been sealed.

[13]   It is not necessary for me to comment on the merits of the Application, and given the possibility of an appeal, it would be inappropriate for me to do so.

Costs

[14]   HG Metal seeks costs and disbursements in respect of the Application on an indemnity basis, in the sum of $13,220.00. It submits that it is entitled to indemnity costs, for the reasons set out in its memorandum of 9 September 2021. Mr Navaratnam has not yet made submissions on costs.

Result

[15]The application is dismissed.

[16]   If Mr Navaratnam wishes to make submissions on costs, he has leave to file a memorandum by 7 October 2021. A decision on costs will then be made on the papers.

Katz J