Keemati Ltd v Mr Civil Ltd - [2021] NZHC 538

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-967

[2021] NZHC 538

BETWEEN
KEEMATI LIMITED

Plaintiff/First Counterclaim Defendant

AND

MR CIVIL LIMITED

First Defendant/ First Counterclaim Plaintiff

AND

JIE GAO

Second Defendant

AND

QNZ LIMITED

Third Defendant/Second Counterclaim Plaintiff

AND

KEEMATI LAL ANGURALA

Second Counterclaim Defendant

Hearing: 8 March 2021

Appearances:

Mr K Angurala seeking leave to represent Plaintiff (by AVL) Z Wall-Manning for Defendants (by AVL)

Judgment:

17 March 2021

JUDGMENT OF ASSOCIATE JUDGE LESTER

This judgment was delivered by me on 17 March 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar 17 March 2021

KEEMATI LIMITED v MR CIVIL LIMITED [2021] NZHC 538 [17 March 2021]

[1] Mr Angurala has applied for leave to represent Keemati Limited, the plaintiff in this proceeding. Mr Angurala is the sole director and only shareholder of Keemati Ltd.

[2] This proceeding was filed on 22 May 2019. The plaintiff has been represented by three firms of solicitors since then, albeit the last only briefly. To date there have been five iterations of the statement of claim. The defendants maintain that none of the statements of claim have provided the necessary particulars, and I will refer to that issue below.

[3] On 17 November 2020, Moore J heard an application for security for costs against the plaintiff and, in a judgment released 22 December 2020, made an order for staged security.1

[4] Mr Angurala’s application for leave to represent the plaintiff was filed on 1 December 2020. The application is opposed.

Applicable principles

[5] There is no dispute as to the applicable principles. I adopt the summary contained in Dreamtech Designs & Productions Pty v Clownfish Entertainment Ltd which provides as follows:2

[8] The legal principles governing this application are well established. We gratefully adopt the following summary in the judgment of Stevens J in this Court in Kai Iwi Tavern Ltd v The New Zealand Guardian Trust Company Ltd:3

[6] 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 …”.4 Cooke J continued:5

There is a cognate rule that, apart from statutory exceptions, a corporation has no right to bring or carry on proceedings in

1      Keemati Ltd v MR Civil Ltd [2020] NZHC 3496.
2      Dreamtech Designs & Productions Pty v Clownfish Entertainment Ltd [2015] NZCA 491, (2015) 23 PRNZ 141 at [8].
3      Kai Iwi Tavern Ltd v The New Zealand Guardian Trust Company Ltd [2013] NZCA 199.
4      Re G J Mannix Ltd [1984] 1 NZLR 309 (CA) at 310.
5      At 311.

a Court except by a solicitor. This refers to the filing of documents – writs, statements of defence, notices of appeal, etc.

[7] This…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZHC 538
Decision Date: 17 March 2021

CaseChat Overview and Summary

Keemati Limited, a construction company, has filed a claim against Mr Civil Limited, a wholly-owned subsidiary of QNZ, a property development company. The claim involves complex disputes relating to the transfer of shares in Mr Civil, the terms of an agreement between the parties, and allegations of breach of trust and breach of directors' duties. Mr Angurala, the sole director and shareholder of Keemati Limited, has applied for leave to represent the plaintiff in this proceeding. The application is opposed by the defendants.

The legal issue before the court was whether Mr Angurala should be granted leave to represent Keemati Limited in the proceeding. The court considered the applicable principles and relevant factors in exercising its discretion to allow non-lawyers to appear on behalf of a company. The court found that the proceeding was complex, involved substantial disputes between the parties, and was at an early stage. The court also found that Mr Angurala would be both counsel and witness in a case where there was hostility between the parties, which would compromise professional objectivity.

The court dismissed Mr Angurala's application for leave to represent Keemati Limited in the proceeding. The court found that the application was not based on an emergency situation or a straightforward matter where the assistance of counsel was not needed by the court. The court also found that perceived deficiencies in the skills or the effort of prior counsel did not justify further counsel not being instructed. The court ordered that costs follow the event on a 2B basis in favour of the defendants.

This case highlights the importance of the principle that a company has no right to be represented in the conduct of a case in court except by a barrister or a solicitor in courts or proceedings where solicitors have the right of audience. The court's discretion to allow non-lawyers to appear on behalf of a company should be exercised sparingly, particularly in complex commercial cases where there are substantial disputes between the parties.

Orders