Prasad v Indiana Publications (NZ) Limited

[2013] NZHC 418

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV2009-404-001521 [2013] NZHC 418

IN THE MATTER OF     the bankruptcy of Rajendra Prasad

BETWEEN  RAJENDRA PRASAD Appellant

ANDINDIANA PUBLICATIONS (NZ) LIMITED

First Respondent

AND  ARIN LAL

Second Respondent

ANDINDIAN NEWSLINK Third Respondent

ANDVENKAT RAM Fourth Respondent

ANDMAHESH PARERA Fifth Respondent

ANDCHENCHU NAGULU Sixth Respondent

Hearing:         5 March 2013

Appearances: No Appearance by the Appellant

G M Harrison for the Respondents

Judgment:      7 March 2013

JUDGMENT OF ELLIS J

This judgment was delivered by Justice Ellis on 7 March 2013 at 3:00 pm pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date…………………………

Solicitors:           Parshotam & Co, P O Box 27079, Mt Roskill, Auckland

Counsel:             G M Harrison, P O Box 4338, Auckland – Email: [email protected]

PRASAD V INDIANA PUBLICATIONS (NZ) LTD HC AK CIV 2009-404-001521 [7 March 2013]

[1]      Mr Prasad has applied to recall a costs decision issued by Wylie J on 9

October 2009.  The application is intemperate in its terms.  This matter was called before me on 5 March 2013, in accordance with the direction given by Wylie J on 26

February 2013.  Again, there was no appearance by Mr Prasad.  Although he had apparently filed a memorandum advising of ill health, that had not made it to the file. Health was also the reason given for his non-appearance on 26 February 2013.

[2]      Mr Harrison appeared on behalf of the respondents.  He had not until recently been aware of the application made by Mr Prasad.   He had filed submissions in opposition on behalf of the respondents.  I heard from him in relation to the matter. He sought that Mr Prasad’s application should be struck out.

[3]      Notwithstanding that Mr Prasad was not present in Court, I have decided that it is appropriate to strike out the application.  In short, it is my clear view that the application cannot possibly succeed, and there is nothing to be gained by setting the matter down for a formal hearing.

[4]      My reasoning is as follows:

(a)      Mr Prasad has previously applied for leave to appeal Wylie J’s costs judgment.   In that application, Mr Prasad raised precisely the same issues as he raised in his application for re-call.  The application was dismissed in a decision on 2 December 2009.[1]

[1] Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV 2009-404-001521, 9 October 2009.

(b)When  bankruptcy  proceedings  were  commenced  in  reliance  on Wylie J’s judgment, the costs judgment was again challenged before Associate  Judge  Faire.    The  Judge  dismissed  the  challenge  in  a

judgment issued on 11 October 2010.[2]

[2] Indiana Publications (NZ) Ltd v Prasad HC Auckland CIV 2010-404-003333, 11 October

2010.

(c)      Mr  Prasad  then  applied  to  have  his  bankruptcy  annulled.    That application was dismissed by Associate Judge Sargisson in a judgment issued on 14 June 2011.[3]

[3] Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV 2010-404-3333, 14 June 2011.

(d)      Mr Prasad   then   sought   a   judicial   review   of   Associate   Judge

Sargisson’s judgment.  Dobson J dismissed that application.[4]

[4] Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV 2010-404-3333, 20 July 2011.

(e)      On 25 July 2011, Mr Prasad filed an application seeking re-call of Dobson J’s judgment for alleged errors of fact and law.   That application was dismissed by Toogood J on 22 August 2011.[5]

[5] Prasad v Indiana Publications (NZ) Ltd HC Auckland CIV 2010-404-3333, 22 August 2011

(f)      In November 2011, Mr Prasad filed an application seeking to review the decision of the Registrar in this Court to seal the order for costs pursuant  to  the  costs  judgment  given  by  Wylie  J.     Associate Judge Christiansen dismissed that application on 16 December 2011.[6]

[6]. Prasad v Indiana Publications (NZ) Limited HC Auckland CIV 2010-404-3333, 16 December2011.

(g)Undeterred, on 23 January 2012, Mr Prasad filed a document headed “Interlocutory Application  —  for  review  of Associate  Judges  and review of the Registrar’s decision before Justice, — and for leave to appellate Court”.  That application was dismissed by Brewer J on 1

March 2012.[7]

(h)In the above circumstances, the costs judgment issued by Wylie J is now plainly unassailable.

[7] Prasad v Indiana Publications (NZ) Limited [2012] NZHC 316.

[5]      As well, I note that Brewer J, in his judgment, directed that the Registry was to  refuse  to  accept  for  filing  any  documents  that  might  thereafter  be  filed  by Mr Prasad which in any way related to his bankruptcy, without first obtaining the

leave of a Judge or Associate Judge. The present application seeking re-call of Wylie

J’s decision does relate to his bankruptcy.  The leave of a Judge or Associate Judge

has not been obtained.  Mr Prasad has breached Brewer J’s direction.

[6]      Moreover, Mr Prasad is also an undischarged bankrupt.  Under s 101 of the Insolvency Act 2006, all property of Mr Prasad vests in the Official Assignee.  As a bankrupt,  Mr  Prasad  has  no  right  to  commence  or  continue  Court  proceedings without the consent of the Official Assignee.  There is nothing to suggest that such consent has been obtained.

[7]      And lastly, Wylie J’s judgment has been sealed.  It was sealed on 9 October

2009.  Rule 11.9 of the High Court Rules, which provides that a Judge may re-call a judgment given orally or in writing, applies only prior to a formal record of the judgment being drawn up and sealed.  The Court has no power to re-call a sealed judgment once it has been perfected.  Thereafter, it can be changed by appeal alone. That avenue has long since been closed to Mr Prasad.[8]

[8] Thomson v Thomson [1992] 6 PRNZ 591 at 594.

[8]      For all of these reasons, the application for re-call is struck out.

[9]      Mr  Harrison  did  seek  indemnity  costs.     Given  that  Mr  Prasad  is  an undischarged bankrupt, there appears to be no point in such an order.  I decline to order costs.

[10]     I reiterate the direction made by Brewer J.   The Registrar is to refuse to accept for filing any documents which may hereafter be filed by Mr Prasad which in any way relate to his bankruptcy, or the judgment of Wylie J dated 9 October 2009, unless Mr Prasad first obtains the leave of a Judge or Associate Judge.   If the Registry is in any doubt about whether a document presented by Mr Prasad falls within this category, it is also to be referred to a Judge or Associate Judge before it is

accepted for filing.

Rebecca Ellis J