Kai Iwi Tavern Ltd v New Zealand Guardian Trust Company Ltd

[2013] NZCA 199

IN THE COURT OF APPEAL OF NEW ZEALAND

CA343/2013
[2013] NZCA 199

BETWEEN	KAI IWI TAVERN LIMITED Appellant
AND	THE NEW ZEALAND GUARDIAN TRUST COMPANY LIMITED First Respondent
AND	ON THE WING TRUSTEES LIMITED Second Respondent
AND	NIGHTINGALE FINANCE LIMITED First Third Party
AND	TORY PROPERTY FINANCE LIMITED Second Third Party
AND	CBRE (AGENCY) LIMITED Third Third Party
AND	FISHER TRUSTEE LIMITED Fourth Third Party

Counsel:

I R Ross for Appellant
M J Tingey and N F D Moffatt for First Respondent
M G Kirkland and J R Farquhar for Second Respondent and First, Second and Fourth Third Parties
S C Gollin and K J Verkerk for Third Third Party

Judgment:

(On the papers)

4 June 2013 at 4.00 pm

JUDGMENT OF STEVENS J
(Review of decision of Registrar)

AThe application for review of the decision of the Registrar is granted.

BThe decision of the Registrar rejecting the notice of appeal by the appellant is set aside.

CThe Registrar is directed to accept the notice of appeal for filing as at the date upon which it was first presented for filing.

DThere is no order as to costs.

____________________________________________________________________

REASONS

Introduction

1. On 18 April 2013 a judgment of Peters J found that the payment of commission made by the first respondent to the third third party was properly made in accordance with the provisions of s 179 of the Property Law Act 2007.  The Judge was satisfied that it ought not to have been paid to the appellant and therefore dismissed the appellant’s claim.[1]

   [1]Kai Iwi Tavern Ltd v The New Zealand Guardian Trust Company Ltd [2013] NZHC 821 at [29].

2. The appellant, Kai Iwi Tavern Limited, wishes to appeal against the judgment.  On 14 May 2013 a notice of appeal was presented to the Registry for filing.  The notice of appeal was signed by a David Oliphant in his capacity as a director of the appellant.  The notice of appeal was referred to the Registrar.

3. On 20 May 2013 the Registrar refused to accept the notice of appeal for filing on the basis that the notice was not signed by a lawyer.  The appellant has filed an application for review of the Registrar’s decision under r 7(2) of the Court of Appeal (Civil) Rules 2005.

Background

1. Following consideration of the notice of appeal, the Registrar wrote to the appellant on 20 May 2013 advising of her decision.  She said:[2]

   This appeal cannot be accepted for filing as the appellant is a company and a company is not generally permitted representation by a non-lawyer.  I refer you to two decisions of the Court of Appeal with regard to this matter.

   [2]The Registrar referred to two authorities:  Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) and New Zealand Cards Ltd v Ramsay [2012] NZCA 285.

2. On 27 May 2013 the appellant sought the review.  In a memorandum accompanying the application Mr Oliphant explained that in presenting the notice the appellant was “only filing the Appeal and it was not going to take any further steps itself in the appeal”.  Mr Oliphant confirmed that the appellant is to have legal representation by the time of the next step in the appeal.  The application for review itself then confirmed that the appellant had instructed a Mr Ian Ross of Ross and Whitney solicitors, Auckland to handle the appeal.

Applicable legal principles

1. In Re G J Mannix Ltd this Court held that it is “well settled” that “a company has no right to be represented in the conduct of a case in Court except by a barrister or by a solicitor in Courts or proceedings where solicitors have the right of audience …”.[3]  Cooke J continued:[4]

   There is a cognate rule that, apart from statutory exceptions, a corporation has no right to bring or carry on proceedings in a Court except by a solicitor. This refers to the filing of documents – writs, statements of defence, notices of appeal, etc.

   [3]At 310.

   [4]At 311.

2. This principle has recently been affirmed by this Court in New Zealand Cards Ltd v Ramsay and Commissioner of Inland Revenue v Chesterfields Preschools Ltd.[5]  The policy reasons behind this principle are set out at [34] of Chesterfields.  Briefly stated, the rule ensures that proper consideration is given to the validity of proceedings, decreases the likelihood that appellants will require indulgences in the rules of procedure, and ensures that those who appear before the Court are cognisant of the duties and responsibilities that are owed to the Court.

   [5]Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53 at [25]–[34].

3. The Court has a discretion to allow non-lawyers to appear on behalf of companies where appropriate.  As Cooke J stated:[6]

   In general, and without attempting to work out hard-and-fast rules, discretionary audience should be regarded, in my opinion, as a reserve or occasional expedient, for use primarily in emergency situations when counsel is not available or in straightforward matters where the assistance of counsel is not needed by the Court or where it would be unduly technical or burdensome to insist on counsel.  Especially in minor matters, cost-saving could also be a relevant factor. A “one-man” company might be allowed to be represented by its owner if the Judge saw fit in a particular case.  But it could not be right, for instance, to issue some sort of tacit continuing or general licence to an unqualified agent to appear in winding up or any other class of proceedings.

Discussion

[6]Re G J Mannix, above n 2, at 314.

1. The step that the appellant sought to take on 14 May 2013 by presenting the notice of appeal for filing was a formal procedural step in order to initiate the appeal.  The notice was signed by a director of the company.  Had he been aware of the  Mannix rule the director ought to have sought leave to sign and file the notice of appeal for the company.

2. The Registrar relied on the rule in Mannix.  However, as noted, the Mannix principle is not absolute. 

3. The discretion referred to at [8] above should be applied reasonably generously where, as in the present case, time limits are rapidly approaching and the director is only seeking leave to file the notice of appeal. It may often be the case that a company appellant does not have time to arrange legal representation prior to the filing of an appeal.

4. In the particular circumstances of this case, I consider that it is appropriate that Mr Oliphant be granted leave to file the notice of appeal.  In reaching this conclusion I take into account the fact that the appellant is in fact represented by a firm of solicitors who will have responsibility for the conduct of the appeal.  I also take into account that Mr Oliphant is the sole director of Kai Iwi Tavern Ltd, and that the appeal is at a very early stage.

5. I note that one of the other parties to the judgment has filed a memorandum seeking to support the decision on other grounds.  Given the procedural issues relating to the appeal, this is an appropriate case to be case managed by a Judge, at least in the initial stages.

Decision

1. The application for review of the decision of the Registrar is granted.  The decision rejecting the notice of appeal by the appellant is set aside.  The Registrar is directed to accept the notice of appeal for filing as at the date upon which it was first presented for filing.

2. As the  appellant was not represented up to the time of filing the review, there is no order for costs.

Solicitors:
Ross and Whitney Solicitors, Auckland for Appellant
Bell Gully, Auckland for First Respondent
Kirkland Morrison, Auckland for Second Respondent and First, Second and Fourth Third Parties
Minter Ellison Rudd Watts, Auckland for Third Third Party