Hum Hospitality Limited v Stylo Medical Services Limited

[2016] NZHC 1867

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-000636 [2016] NZHC 1867

BETWEEN

HUM HOSPITALITY LIMITED

Plaintiff

AND

STYLO MEDICAL SERVICES LIMITED Defendant

On the papers
Judgment:	11 August 2016

JUDGMENT OF GILBERT J [On recall application]

This judgment is delivered by me on 11 August 2016 at 3.30 pm pursuant to r 11.5 of the High Court Rules.

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

Counsel:

R O Parmenter, Barrister, Auckland

Copy to:

Plaintiff

HUM HOSPITALITY LTD v STYLO MEDICAL SERVICES LTD (2) [2016] NZHC 1867 [11 August 2016]

[1]      In a judgment issued yesterday, I declined an application by Hum Hospitality Limited (Hum) for a stay of execution of a costs order of approximately $9,000 made by Courtney J in a judgment delivered on 27 June 2016.  The application for stay was based on Hum’s contention that it cannot afford to pay the costs and that, unless a stay is ordered, Hum will be unable to pursue its claim for damages in the substantive proceeding.  This application was declined because Hum did not provide any evidence in Ms Armitage’s 142 page supporting affidavit showing its assets, liabilities,  income or expenses that  would  enable the Court  and  the plaintiff to scrutinise its claim of impecuniosity.

[2]      Rosanne Armitage, a director of Hum, has filed a memorandum asking me to recall the judgment.  Ms Armitage says in her memorandum that she did not direct me to relevant information concerning Hum’s financial position:

Anticipating  the affidavit to go to Courtney J, I was ill prepared to direct your honour to relevant information specific to the Stay on Cost Exemption, expecting to be given time at a future date to do so  before her honour Courtney J.  Her honour already, by way of Memorandum, been aware that our full accounts and financial situation are already before the Courts.

[3]      Ms Armitage claims that recall is appropriate in these circumstances.   She relies on the third category of case referred to by Wild CJ in Horowhenua County v Nash (No 2), namely, where for some “very special reason justice requires that the judgment be recalled.”1

[4]      Hum’s application for recall should have been made by way of a formal application,  not  simply  by  filing  a  memorandum.    Ms Armitage  should  not  be representing Hum.   My judgment gave reasons why this is unsatisfactory.   The present application for recall confirms this.   Nevertheless, I will deal with the application despite its deficiencies.

[5]      I do not accept that Ms Armitage was entitled to expect that “the affidavit” would “go to Courtney J.”  The matter was called before me in the Duty Judge List on 8 August 2016.  It was stood down until 2.15 pm on the basis that I would hear

the application and determine it.  Ms Armitage can have been in no doubt about this;

1      Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

she was specifically advised that the matter would not be dealt with by Courtney J. Ms Armitage cannot have thought that she would be “given time at a future date” to draw the relevant information to the attention of Courtney J.

[6]      Ms Armitage  did  not  annex  the  “full  accounts”  to  her  memorandum  or otherwise identify where these can be found.  I endeavoured, without success, to find any such accounts despite looking through four large boxes of materials filed in this proceeding and in related proceedings CIV-2012-404-5824, CIV-2013-404-4995 and CIV-2016-404-80.

[7]      After I completed that exercise, Ms Armitage sent an email to the Registrar

headed “Evidence from the file”:

Hey Sharon

I’ve been able to find;

1)   James Kidd affidavit dated 5th February file number 2016-404-80 which speaks to our getting stronger in regards to meeting our obligations.  In did so to show to support that while we are late with our rental payments due to our financial situation we are not insolvent (sic).

2)   Rosanne Armitage affidavit (mine) dated 5th February 2016 13(f) where I

make mention of our financial situation 2016-404-80

3)   Rosanne Armitage affidavit (mine) dated 20th November 2012-CIV-404-

5824  lays  out  how  the  project  works  on  volunteers  and  in  my  last

paragraph I note we operate “hand to mouth”

Do you have Sam Miles email so I can do an email search by his address?

[8]      This is a wholly unsatisfactory process.  The onus was on Hum to provide current   evidence   at   the  hearing  to   substantiate  its   claim   of  impecuniosity. Ms Armitage completed a lengthy affidavit in support of the application but it did not contain this information.   Ms Armitage did not draw my attention to any other potentially relevant material at the hearing even though it was clear that this was the central issue.  In my view, Hum must bear the consequences of its failure to provide relevant information to the Court at the hearing.

[9]      In any event, the evidence referred to in Ms Armitage’s email does not supply the missing information.   Contrary to her assertion, it does not contain “full accounts”.

[10]     Mr Kidd’s affidavit, sworn on 5 February 2016, does not assist Hum’s claim

that it is impecunious.  He says:

I have been working with them over the last five or six months to ensure that they are financially strong and in a position to meet their commitments including their obligations under the lease agreement with the landlord. … I believe the financial models and methods that have been formalised place the business in a strong position to pay its debts.

[11]     Paragraph 13(f) of Ms Armitage’s affidavit sworn on 5 February 2016 does

not advance the position:

The late payment of rent over the last two months has arisen because of the additional costs arising out of the litigation brought by the landlord.   In particular, Hum had had to pay for a quantity surveyor required to confirm for the Court the work which had been undertaken.  That expense caused a temporary difficulty which is in the process of being rectified.  I explained this to Mr Ooi at the time, as I outline below.

[12]     Ms Armitage’s affidavit sworn on 20 February 2012 in CIV-2012-404-5824 is also of no assistance to the present application.  The statement Ms Armitage relies on in that affidavit is that:

This project operates (financially) from hand to mouth.

[13]     This statement refers to the “project” and says nothing about the financial position of Hum.   It relates to February 2012 and does not assist in determining Hum’s current financial position.  The statement is, in any event, hopelessly vague and unsubstantiated.

[14]     Applications to the Court must be properly supported with evidence and have to be decided on the evidence.  Once a decision is made, it is generally too late to reopen the matter by directing the Court’s attention to other evidence that could have been offered.     In  any event, the further material that Ms Armitage has drawn attention to would have made no difference to the decision.

[15]     I do not consider that there is any “very special reason” requiring that the

judgment  be  recalled  in  the  interests  of  justice.     The  application  for  recall  is dismissed.

M A Gilbert J