Navaratnam v HG Metal Manufacturing Limited

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA221/2023
[2024] NZCA 27

BETWEEN	SHERINE SANGEETHA NAVARATNAM Applicant
AND	HG METAL MANUFACTURING LIMITED Respondent

Court:	Goddard and Mallon JJ
Counsel:	Applicant in person T B Fitzgerald for Respondent
Judgment: (On the papers)	21 February 2024 at 11.00 am

JUDGMENT OF THE COURT

The application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

This is an appeal by Mrs Navaratnam against a decision of Associate Judge Taylor dismissing Mrs Navaratnam’s application to set aside a bankruptcy notice.[1]
[1]HG Metal Manufacturing Ltd v Navaratnam [2023] NZHC 637.
On 10 July 2023 the Deputy Registrar declined Mrs Navaratnam’s application to dispense with security for costs. Mrs Navaratnam applied for a review of the Deputy Registrar’s decision. That application was declined.[2] Following that judgment, security for costs of $7,060 was payable by 23 November 2023.
[2]Navaratnam v HG Metal Manufacturing Ltd [2023] NZCA 525.
Security for costs has not been paid.
Mrs Navaratnam has also failed to apply for a fixture, and file a case on appeal, as required by r 43 of the Court of Appeal (Civil) Rules 2005 (Rules). The date for compliance with r 43 was extended on a number of occasions. The final deadline was 4 December 2023. Mrs Navaratnam did not apply for a fixture or file a case on appeal by that date. So the appeal is treated as having been abandoned under r 43(1).
Instead of filing a case on appeal and applying for the allocation of a fixture, Mrs Navaratnam applied for a further extension of time to file the case on appeal and to make an application for a hearing date. That application is opposed by the respondent.[3]
[3]It appears the application was not served on the lawyers acting for the respondent. But they are aware of the application, and have filed a memorandum in relation to it. Mrs Navaratnam’s failure to serve documents on the lawyer for the respondent, despite the requirements of the Rules and multiple directions by the Court, is one of the many unsatisfactory respects in which Mrs Navaratnam and her husband have conducted their proceedings before this Court.
The Court is in a position to determine this application on the basis of the material already filed. None of the grounds on which Mrs Navaratnam seeks an extension is capable of justifying a further extension of time for compliance with r 43. There has been a pattern of failure by Mr and Mrs Navaratnam to comply with timetable requirements in the Rules and in Court directions, and of seeking extensions of time. This pattern of behaviour, which appears to be designed to cause delay in the bankruptcy proceedings before the High Court, is an abuse of the process of the Court.
There would be no point in granting an extension of time under r 43(3) of the Rules in any event, as Mrs Navaratnam cannot apply for allocation of a fixture until she has paid security for costs. If this application was made in good faith, with an intention of complying with the rules that govern appeals to this Court, security for costs should have been paid no later than the time at which the application was made.
The failure to pay security for costs also means that the appeal is liable to be struck out under r 37(1) of the Rules. If the appeal was not deemed to be abandoned, we would have struck it out under that rule. In those circumstances, extending time under r 43(3) would be futile.
For the reasons set out above, we decline to extend time under r 43(3) of the Rules. The result is that the appeal continues to be treated as abandoned.
The Registrar should not accept any further documents from Mrs Navaratnam that are presented for filing in respect of this abandoned appeal.

Result

The application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 is declined.

Solicitors:
Bell Gully, Auckland for Respondent

The Court of Appeal of New Zealand heard an appeal by Sherine Sangeetha Navaratnam against the dismissal of her application to set aside a bankruptcy notice. HG Metal Manufacturing Limited was the respondent, and the appeal was heard by Goddard and Mallon JJ. The appeal focused on the denial of an extension of time to file a case on appeal and to apply for a hearing date, as well as the failure to pay security for costs. The appeal was treated as abandoned due to the non-compliance with procedural requirements and repeated failures to adhere to deadlines.

The primary legal issue before the court was whether the appeal could be revived by granting an extension of time for compliance with the procedural requirements under the Court of Appeal (Civil) Rules 2005. Specifically, the court had to consider whether the applicant's history of non-compliance and failure to pay security for costs justified an extension of time. The court also had to determine if there were any grounds that could warrant a departure from the strict adherence to the rules.

The Court of Appeal declined the application for an extension of time. It found that the applicant had a pattern of failing to comply with the procedural requirements and seeking extensions of time, which constituted an abuse of the court process. The court held that granting an extension of time would be futile, as the applicant could not apply for a fixture until the security for costs was paid, and there was no evidence that the application was made in good faith. The court also noted that the failure to pay security for costs meant the appeal was liable to be struck out under rule 37(1) of the Court of Appeal (Civil) Rules 2005. Consequently, the appeal remained abandoned.

The court's final order was that the application for an extension of time under rule 43 of the Court of Appeal (Civil) Rules 2005 was declined. The Registrar was instructed not to accept any further documents from Mrs Navaratnam in respect of this abandoned appeal.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established