Navaratnam v HG Metal Manufacturing Limited
[2024] NZCA 311
•12 July 2024 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA662/2023 [2024] NZCA 311 |
| BETWEEN | VASHIHARAN NAVARATNAM |
| AND | HG METAL MANUFACTURING LIMITED |
| Court: | Goddard and Katz JJ |
Counsel: | Applicants in person |
Judgment: | 12 July 2024 at 11.00 am |
JUDGMENT OF THE COURT
A The application for recall is declined.
BThe Registrar is directed not to accept any further documents for filing in relation to this appeal from Mr and/or Mrs Navaratnam.
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REASONS OF THE COURT
(Given by Goddard J)
Mr and Mrs Navaratnam have filed an application and supporting material contending that this Court’s judgment delivered on 16 April 2024, directing the Registrar to treat this appeal as being formally abandoned, should be “set aside”.[1] We treat this as an application for recall of this Court’s judgment, as there is no other procedure by which this Court can be asked to set aside or vary a judgment delivered by two judges of this Court.[2]
[1]Navaratnam v HG Metal Manufacturing Ltd [2024] NZCA 111.
[2]Court of Appeal (Civil) Rules 2005, r 8A.
The Navaratnams have been adjudicated bankrupt. Notices of abandonment of this appeal were filed on their behalf by the Official Assignee. This Court’s judgment set out the reasons why those notices would be treated by this Court as valid and effective, absent a successful challenge to the issue of those notices before the High Court.
The Navaratnams say this Court’s judgment should be “set aside” on various procedural and substantive grounds. They argue that the Court should not have accepted the notices of abandonment as valid; should have conducted a hearing on the validity of the notices; and/or should have proceeded to determine their appeal on the merits.
The Navaratnams are (subject to relevant time limits) able to challenge the Official Assignee’s decision to file the notices of abandonment by pursuing an appeal under s 226 of the Insolvency Act 2006. They are also (again, subject to relevant time limits) able to seek leave to appeal to the Supreme Court from this Court’s judgment.[3] Those are the appropriate avenues for pursuing any challenge to the decision of this Court to treat this appeal as abandoned.
[3]Senior Courts Act 2016, s 68.
It is far from clear that the Navaratnams have standing to seek a recall of this Court’s judgment, following the abandonment of this appeal. But in any event, nothing in the lengthy material filed by the Navaratnams engages with the test for recall of a judgment, and it is not seriously arguable that there are very special circumstances of the kind that could justify recalling this Court’s judgment.[4]
[4]See Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633; Craig v Williams [2019] NZSC 60 at [10]; and Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2009] NZSC 122, [2010] 1 NZLR 76 at [2].
The application for recall is therefore declined.
As the appeal has been abandoned, it is no longer a live proceeding (except for costs purposes) and no further steps can be initiated by the Navaratnams. If the respondent applies for costs (as contemplated by r 44(3) of the Court of Appeal (Civil) Rules 2005) it follows from this Court’s judgment that it is the Official Assignee who would be entitled to respond to any such application on the Navaratnams’ behalf. So there are no further steps of any kind that can properly be taken by the Navaratnams in connection with this appeal. In the interests of finality, and ensuring that the Court’s resources can be focused on live matters that require resolution, the Registrar is directed not to accept any further documents from Mr and/or Mrs Navaratnam for filing in relation to this appeal.
Solicitors:
Bell Gully, Auckland for Respondent
Insolvency and Trustee Service, Ministry of Business, Innovation & Employment, Wellington for Official Assignee
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