Navaratnam v HG Metal Manufacturing Limited
[2022] NZCA 619
•12 December 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA532/2022 [2022] NZCA 619 |
| BETWEEN | VASHIHARAN NAVARATNAM |
| AND | HG METAL MANUFACTURING LIMITED |
| Court: | Brown and Gilbert JJ |
Counsel: | Appellant in person |
Judgment: | 12 December 2022 at 9.30 am |
JUDGMENT OF THE COURT
AThe respondent’s application for review of the Deputy Registrar’s decision is declined.
BWe make no order for costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Mr Navaratnam was adjudicated bankrupt on 30 August 2022 on the application of HG Metal Manufacturing Ltd (HG Metal).[1] He wishes to appeal against that decision. However, rather than lodging an appeal upon receipt of the judgment, he applied to the High Court for a review under s 414 of the Insolvency Act 2006 or, alternatively, for recall of the judgment under r 11.9 of the High Court Rules 2016. That application, which he filed promptly on 5 September 2022, was dismissed on 4 October 2022.[2] Mr Navaratnam filed a notice of appeal in this Court the following day, five working days out of time.
[1]HG Metal Manufacturing Ltd v Navaratnam [2022] NZHC 2183 [High Court judgment].
[2]HG Metal Manufacturing Ltd v Navaratnam [2022] NZHC 2546.
The Deputy Registrar granted an extension of time to appeal in reliance on the power conferred under r 5A(1)(c)(ii) of the Court of Appeal (Civil) Rules 2005 (the Rules). This rule relevantly reads:
5A Registrar’s powers
(1) The Registrar may, unless otherwise directed by a Judge,—
…
(c)extend the time for complying with any rule, direction, or order of the Court—
(i) by consent; or
(ii) by up to 5 working days, despite the absence of consent.
(2) The Registrar’s power under subclause (1)(c)—
…
(b) is in addition to any express power to extend time under these rules.
…
HG Metal subsequently applied informally for a review and an order revoking the Deputy Registrar’s decision. An issue arose as to whether the Registrar’s powers under r 5A(1)(c) permit the grant of an extension of time to appeal. HG Metal contends that the Deputy Registrar had no jurisdiction under r 5A to grant an extension of time to appeal. Mr Navaratnam supports the Deputy Registrar’s decision, but he is not legally represented, and we have therefore not had the benefit of legal submissions from a contradictor.
In any event, we have concluded, in agreement with the Deputy Registrar, that the short extension of time required for this appeal should be granted and it is therefore not necessary for us to address the scope of the Registrar’s powers under r 5A.
The approach to applications for an extension of time to appeal was settled by the Supreme Court in Almond v Read.[3] Relevant factors are likely to include the length of the delay, the reason for it, the conduct of the parties, particularly that of the applicant, any prejudice caused, and the significance of the issues raised by the proposed appeal.[4] The merits of the proposed appeal are generally not relevant in cases where the delay is insignificant and causes no prejudice. The jurisdiction is not to be exercised as a way of dismissing apparently weak appeals summarily. However, where an appeal is clearly hopeless, an extension of time will not be granted.[5] The ultimate question is what the interests of justice require.[6]
[3]Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.
[4]At [38].
[5]At [39].
[6]At [38].
Here, the delay in appealing was short and caused no prejudice. The judgment against which Mr Navaratnam wishes to appeal — an order adjudicating him bankrupt — is plainly significant for both parties. An extension of time would normally be granted so as not to deprive Mr Navaratnam of his right to appeal.
HG Metal nevertheless opposes an extension of time being granted for two reasons. First, Mr Navaratnam has failed to comply with timetable directions and procedural rules in the past, attracting criticism from the High Court and this Court. Secondly, HG Metal contends that the appeal is manifestly without merit.
It is unnecessary to traverse the tortuous background in any detail because it has been rehearsed in numerous other decisions, including of this Court.[7] The following brief summary will suffice for present purposes.
[7]HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 1920; HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2497; HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2701; Navaratnam v HG Metal Manufacturing Ltd [2021] NZCA 704 [First Court of Appeal judgment]; High Court judgment, above n 1; and Navaratnam v HG Metal Manufacturing Ltd [2022] NZCA 425 [Second Court of Appeal judgment].
In 2020, HG Metal obtained an award from a Singaporean arbitrator for substantial sums due by Mr Navaratnam and his wife under a guarantee. HG Metal experienced significant difficulty in seeking recognition and enforcement of that award as a judgment in New Zealand. In a judgment delivered on 20 December 2021, this Court observed that Mr Navaratnam had “done everything possible to delay judgment and frustrate [HG Metal’s] attempts to enforce the arbitral award”.[8] In a later judgment, delivered on 8 September 2022, this Court struck out two appeals brought by Mr and Mrs Navaratnam against two decisions of the High Court entering judgment on the arbitral award — the first by Woolford J on 22 October 2020 against Mrs Navaratnam and the second by Katz J on 28 July 2021 against Mr Navaratnam.[9] In striking out these appeals, this Court made the following observations:
[46] The procedural history we have outlined is far from complete in terms of Mr and Mrs Navaratnam’s failure to comply with High Court Rules and specific directions of this Court. It is evident from the matters that we have specifically addressed that there have been repeated failures to comply. Moreover, we are satisfied beyond doubt that these omissions have been wilful, and are a deliberate attempt to delay and forestall progress by HG Metal towards resolving its original application for recognition and enforcement.
…
[48] Mr and Mrs Navaratnam have deliberately attempted to delay progress of this appeal. They have failed to comply with numerous directions of the Court, even in the face of express warnings from the Court about the need to comply. There is no discernible merit in the appeal that would justify further latitude. The point has been reached where HG Metal’s rights should be recognised. We are satisfied that this is an appropriate case in which the power to strike out the appeal for continuing default in compliance with court rules and directions is appropriate.
[8]First Court of Appeal judgment, above n 7, at [13].
[9]Second Court of Appeal judgment, above n 7.
The consequences of Mr Navaratnam’s delay and procedural non-compliance in the context of the proceedings seeking recognition and enforcement of the arbitral award as a judgment have already been visited upon him, including by striking out his appeals and the making of various costs awards against him. We are not persuaded that this history of non-compliance in the related proceedings justifies depriving him of his right to appeal against the order adjudicating him bankrupt in the present proceeding. Nor are we persuaded that this is one of those rare cases where the appeal is so obviously hopeless on its face that an extension of time should not be granted. We consider that the interests of justice favour the grant of the very short extension of time required to enable the appeal to be brought.
However, Mr Navaratnam must progress the appeal diligently and without any delay. Any failure on his part to prosecute the appeal or to comply with procedural rules and directions is likely to be met by an order striking out the appeal. Given the background, he should not expect any latitude to be granted.
Result
The respondent’s application for review of the Deputy Registrar’s decision is declined.
We make no order for costs.
Solicitors:
Bell Gully, Auckland for Respondent
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