Hum Hospitality Limited v Stylo Medical Services Limited

[2021] NZCA 457

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA176/2021
 [2021] NZCA 457

BETWEEN	HUM HOSPITALITY LIMITED Applicant
AND	STYLO MEDICAL SERVICES LIMITED Respondent

Court:	Kós P and Brown J
Counsel:	B J Burt for Appellant R O Parmenter for Respondent
Judgment: (On the papers)	9 September 2021 at 10 am

JUDGMENT OF THE COURT

The application for recall this Court’s judgment in Hum Hospitality Ltd v Stylo Medical Services Ltd [2021] NZCA 377 is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Kós P)

1. On 13 August 2021 we granted Hum’s application for an extension of time to appeal, despite its failure to adequately explain delay and our assessment of the apparent merits of the appeal as neither strong nor, exactly, hopeless.[1]

   [1]Hum Hospitality Ltd v Stylo Medical Services Ltd [2021] NZCA 377.

2. The application was granted subject to conditions.  First, that Hum make payment to the respondent, Stylo, of the sum of $92,925.24 within 14 days, that being the sum likely due by way of arrears as a consequence of the High Court’s judgment.[2]  Secondly, that Hum was to prosecute its appeal with expedition, with the appeal being instituted within 14 days and then placed on the fast track.[3]

   [2]At [4], [15] and [22].  See generally Stylo Medical Services Ltd v Hum Hospitality Ltd [2020] NZHC 2969.

   [3]At [22].

3. Application for recall of judgment has been filed by Hum on the basis the judgment contains an error.  Indeed, it does.  At this level of the judicial hierarchy, we cannot claim infallibility. 

4. The error is the observation at [21] of the judgment that Stylo was holding an unstayed judgment entitling cancellation of Hum’s lease.  However, we had overlooked a stay granted by Brewer J on 13 April 2021.[4] 

   [4]Stylo Medical Services Ltd v Hum Hospitality Ltd [2021] NZHC 772.

5. At this point, the alert reader may be asking, why did the Judge grant that stay?  The answer, unsurprisingly, was to permit Hum to advance its application in this Court for an extension of time to appeal.[5]

   [5]At [9].

6. The rationale of [21] of the judgment of this Court was to require Hum to clear its likely arrears as a condition of being permitted to advance its belated, neither strong nor exactly hopeless, appeal.  That is, the now-permitted appeal was not to be used as a stay de facto.  The sum specified is not so evidently unsound as to be beyond sense, and Hum has not offered a more robust calculation of what it will be liable for if it loses.  It follows the rationale for the first condition imposed on the grant of the extension of time to appeal is unimpaired by oversight of a stay granted pending determination of the extension application.

7. These circumstances do not fall within the principles for recall of judgment laid down in Horowhenua County v Nash (No 2).[6]

Result

[6]Horowhenua County v Nash (No 2) [1968] NZLR 632 (HC).

1. The application for recall this Court’s judgment in Hum Hospitality Ltd v Stylo Medical Services Ltd [2021] NZCA 377 is declined.

Solicitors:
Winston Wang & Associates, Auckland for Respondent