Kamo Landscape & Quarry Supplies Limited v Whang�rei High Court

[2021] NZHC 1835

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE

CIV-2020-488-83

[2021] NZHC 1835

BETWEEN

KAMO LANDSCAPE & QUARRY SUPPLIES LIMITED
Applicant

AND

WHANGĀREI HIGH COURT

First Respondent

WHANGĀREI DISTRICT COURT
Second Respondent

ENVIRO 360 LIMITED

Third Respondent

Hearing:

On the papers

Counsel:

J Robinson, Director of Kamo Landscape & Quarry Supplies Limited

G Taylor for First and Second Respondent
S M Henderson and P J Wilson for Third Respondent

Judgment:

22 July 2021

JUDGMENT OF WHATA J

This judgment was delivered by me on 22 July 2021 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors:           Crown Law, Wellington

Henderson Reeves Lawyers, Whangarei

KAMO LANDSCAPE & QUARRY SUPPLIES LIMITED v WHANGĀREI HIGH COURT [2021] NZHC 1835 [22 July 2021]

[1]                 This is an application by Mr Robinson, a director of Kamo Landscape & Quarry Supplies Limited (Kamo  Landscape), for leave to appeal my  decision of    16 February 20211 to the Court of Appeal.

[2]                 The substance of my decision may be stated briefly. Kamo Landscape sought to judicially review a decision of the District Court, declining Kamo Landscape’s appeal from a decision of the Disputes Tribunal (the Tribunal). Kamo Landscape claimed, among other things, that the process adopted by the Tribunal was unfair and that the District Court was wrong to uphold the Tribunal’s decision. I rejected the application for review because I considered that:

(a)the Referee carefully considered Kamo Landscape’s primary claim;2

(b)there was no procedural error or unfairness;3 and

(c)finally, had there been an error: Kamo Landscape’s claim could not succeed given it would have had to repay the sum in dispute in any event.4

[3]                 In terms of the application for leave, Mr Robinson maintains his basic complaint that there was a procedural error creating unfairness. The upshot is he effectively wishes to reargue the matters that failed before the District Court and before me.

[4]The application is opposed because:

(a)it was filed late; and

(b)Mr Robinson does not have standing to represent the applicant, Kamo Landscape.

1      Kamo Landscape & Quarry Supplies Ltd v Whangārei District Court [2021] NZHC 170.

2 At [20].

3 At [21].

4 At [22].

Assessment

[5]                 Kamo Landscape does not require leave to appeal my decision to the Court of Appeal,5 and any application for leave to appeal out of time is for the Court of Appeal to determine.6

[6]                 However, I assume for present purposes Mr Robinson is seeking leave to act for Kamo Landscape given the decision of Lang J in his minute of 5 November 2020 requiring Kamo Landscape to be represented by a solicitor.7 It is not clear that I have jurisdiction to revisit Lang J’s decision. In any event, assuming I do, I am not satisfied I should grant leave.

[7]                 In some cases, the Court may exercise its discretion to allow a director to appear for a company. That will generally be in exceptional circumstances where counsel is unavailable, in straightforward matters where counsel is not required, or where it would be unduly technical or burdensome to insist on counsel.8 This is not one of those circumstances. Moreover, the rule requiring representation ensures a company’s and shareholder’s interests are properly represented in any decision the company takes to litigate.9 Given that merits of the proposed appeal are inherently weak—simply seeking to relitigate evaluative matters already determined by two Courts10—it is not obviously in the interests of the company to pursue an appeal. In addition, it does not appear this is an “emergency situation” where counsel is unavailable.11

[8]                 Accordingly, to the extent I am able to revisit the decision of Lang J requiring that the company be represented by a solicitor, I refuse leave to Mr Robinson to act

5      Senior Courts Act 2016, s 56(1)(a).

6      Where a party may appeal as of right to the Court of Appeal, they must do so within 20 working days after the date of the decision the party wishes to appeal: Court of Appeal (Civil) Rules 2005, r 29(1). If that time period has expired, a party may bring an interlocutory application for an extension of time under r 29A(1). The mode of bringing an interlocutory application under the Court of Appeal (Civil) Rules is prescribed in r 27B.

7      Re G J Mannix Ltd [1984] 1 NZLR 309 (CA); and Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd [2015] NZCA 491, (2015) 23 PRNZ 141 at [8]-[10].

8      Re G J Mannix Ltd, above n 7, at 314.

9      Oceanic Palms Ltd v Kiwi Rail Ltd [2018] NZHC 679 at [23].

10     See Central Equipment Company Ltd v Commissioner of Inland Revenue [2008] NZCA 42.

11     Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd, above n 7, at [10], citing Re G J Mannix Ltd, above n 7, at 314.

for Kamo Landscape. It will be a matter for the Court of Appeal to determine whether Mr Robinson may act for Kamo Landscape on any appeal to that Court.