Optimizer HQ Limited (in liquidation) v Bank of New Zealand

[2021] NZHC 462

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-001763

[2021] NZHC 462

BETWEEN

OPTIMIZER HQ LIMITED (in liquidation) Plaintiff

AND

BANK OF NEW ZEALAND

First Defendant

SMARTPAY LIMITED

Second Defendant

Hearing:

10 March 2021

Appearances:

M Taylor-Cyphers for Plaintiff company

M C Brugeyroux for the Liquidators of the Plaintiff company J A Craig and S A Comber for First Defendant

D J Chisholm QC and J D Ryan for Second Defendant

Judgment

10 March 2021

ORAL JUDGMENT OF WYLIE J

Solicitors/counsel:

Keam Law Ltd/M Taylor-Cyphers, Auckland Simpson Grierson, Auckland

Copy to:
McDonald Vague Ltd, Auckland

OPTIMIZER HQ LTD (in liq) v BANK OF NEW ZEALAND [2021] NZHC 462 [10 March 2021]

[1]                 The way in which this matter has come before me today is not particularly clear or satisfactory, but the background is relatively straightforward.

[2]                 The plaintiff, Optimizer HQ Ltd (“Optimizer”), brought proceedings against the first defendant, the Bank of New Zealand, and the second defendant, Smartpay Ltd. They applied to strike out those proceedings. In a reserved judgment issued by me on 8 June 2020, I struck out the statement of claim and directed the Registrar to return to Optimizer an amended statement of claim it had endeavoured to file on 3 June 2020.1 I recorded that if Optimizer wished to start afresh, it would have to refile that document through a solicitor and either pay the appropriate filing fee or obtain a fees waiver. I recorded that it would then be open to the BNZ and Smartpay to respond to the amended statement of claim as they saw fit.

[3]                 Notwithstanding this direction, Optimizer endeavoured to file an amended statement of claim in these proceedings on 31 October 2020. That resulted in a joint memorandum being filed by counsel for the BNZ and Smartpay Ltd. They sought an order that the amended statement of claim dated 31 October 2020 should be returned to Optimizer. They argued in the memorandum that the proceedings had been struck out and that there was nothing live to amend.

[4]                 Optimizer, through its counsel, then filed a memorandum dated 10 November 2020. That memorandum recorded that there were potential limitation issues. It also noted that my decision had been appealed by Optimizer to the Court of Appeal. It recorded that if the appeal were successful, Optimizer might be able to file an amended statement of claim as of right. Counsel requested that the amended claim dated 30 October 2020 should be accepted for filing and that a new mirror claim should be allocated a new CIV number.

[5]                 Since that date, Optimizer has been put into liquidation. Ms Brugeyroux appeared this morning on behalf of the liquidators. She is not an admitted solicitor and her appearance on behalf of the liquidators was unsatisfactory. If the liquidators wished to be heard on a matter such as this, they should have arranged for legal representation.

1      Optimizer HQ Ltd v Bank of New Zealand [2020] NZHC 1253.

[6]                 I nevertheless heard from Ms Brugeyroux in relation to the factual background and from counsel appearing.

[7]                 To my mind, the position is clear. First, I struck out the initial statement of claim. Secondly, I directed the Registrar to return the amended statement of claim which Optimizer sought to file on 3 June 2020. Optimizer has appealed my judgment to the Court of Appeal, although the appeal does not seem to have been progressed. I am advised that security for costs has not been paid. This aside, until my judgment is overturned by the Court of Appeal it remains extant.

[8]                 It follows that these proceedings – CIV-2019-404-001763 – are at an end. There is no live statement of claim which can be amended. The plaintiff, or any assignee from the plaintiff, can commence fresh proceedings. If there are limitation issues, then there are limitation issues. That is not a matter which justifies a departure from the correct legal position and/or the High Court Rules.

[9]                 I direct that the amended statement of claim dated 31 October 2020 is to be returned by the Registrar to Optimizer. I repeat that if Optimizer or any assignee wishes to proceed it will have to file fresh proceedings, paying the appropriate filing fee or seek a waiver.

[10]              I record that Mr Craig for the BNZ and Mr Chisholm QC for Smartpay reserve their respective clients’ position as to costs. I direct that any application for costs is to be filed within 10 working days of today’s date. Any response – presumably from the liquidators – is to be filed within a further 10 working days. I will then deal with the issue of costs on the papers unless I require the assistance of counsel.

Wylie J