Prestige Motors Limited v My Trustee Company (Nikolas and Petra) Limited

[2022] NZHC 319

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2021-404-80

[2022] NZHC 319

IN THE MATTER

of Articles 9, 17A and 17B of Schedule 1 of the Arbitration Act 1996 and s 253 of the Property Law Act 2007

BETWEEN

PRESTIGE MOTORS LIMITED

Applicant

AND

MY TRUSTEE COMPANY (NIKOLAS AND PETRA) LIMITED

Respondent

Hearing:	On the papers
Counsel:	J Long and G Morrison for the Applicant D Purusram for the Respondent
Judgment:	1 March 2022

JUDGMENT (NO 3) OF GORDON J

This judgment is delivered by me on 1 March 2022 at 10 am pursuant to r 11.5 of the High Court Rules.

.....................................................

Registrar / Deputy Registrar

Solicitors:           DK Law, Auckland

Victorian Lawyers, Papakura, Auckland

Counsel:            J Long, Auckland

G Morrison, Auckland

PRESTIGE MOTORS LTD v MY TRUSTEE COMPANY LTD [2022] NZHC 319 [1 March 2022]

[1]                 The respondent, My Trustee Company (Nikolas and Petra) Limited (MTC), has applied, by memoranda, for a transcript and/or the Judge’s handwritten notes of a call of this matter in the Duty Judge list on 3 February 2021.

[2]                 Stephen Penney, a director of MTC, appeared on behalf of MTC on that occasion. There is a dispute over what Mr Penney is alleged to have said to the Court, in particular whether he made any admissions in relation to the property of the applicant Prestige Motors Limited (Prestige).

[3]                 Prestige does not take a position on MTC’s application but in a memorandum provides assistance to the Court by referring to relevant authorities. Prestige also requests that if the Court were to order that a transcript (or other document) be provided to MTC, that it be provided with a copy at the same time.

Background

[4]                 The proceeding has concluded in this Court. Two judgments were issued, on 22 February 20211 (first judgment) and on 27 April 20212 (second judgment). There was also a costs judgment.3

[5]                 The background is summarised in the second judgment which was given on an application by MTC for correction of the first judgment. I set out the relevant paragraphs below:

[3]        Prestige ran its automotive services and repair business from premises at 14-16 Dryden Place, Mt Wellington (the premises) until it was locked out from the premises by the landlord, MTC. Prestige claimed MTC had unlawfully purported to terminate its lease (the lease), evict it from the premises, and deny it access to the premises on a number of occasions. Prestige claimed it had suffered considerable losses because of MTC’s actions as it was unable to conduct its business. As a consequence, Prestige applied for urgent interim measures and relief regarding the tenancy.

[4]        The lease contains an arbitration clause. Pending any arbitration, Prestige sought interim measures under arts 9, 17, 17A and 17B of Schedule 1 of the Arbitration Act 1996. Prestige sought those measures to restore the status quo under the lease and to prevent MTC from taking action that was likely to cause harm or prejudice to the arbitral proceedings.

1      Prestige Motors Ltd v My Trustee Co (Nikolas and Petra) Ltd [2021] NZHC 237.

2      Prestige Motors Ltd v My Trustee Co (Nikolas and Petra) Ltd [2021] NZHC 895.

3      Prestige Motors Ltd v My Trustee Co (Nikolas and Petra) Ltd [2021] NZHC 849.

[5]        Article 9 of Schedule 1 of the Arbitration Act empowers the Court to grant interim measures before or during an arbitration. The Court is restricted to the same powers as those of the arbitral tribunal (under arts 17A and 17B). The Court’s jurisdiction is therefore auxiliary to and complements and facilitates, the arbitral process. The ordinary jurisdiction for interim injunctions does not apply.4

[6]        Prestige’s case was that MTC’s cancellation of the lease was unlawful because the notice given by MTC did not comply with the code for cancellation of leases under the Property Law Act 2007 (PLA). Applying the criteria in art 17B(1)(a)–(c), I accepted that Prestige had an arguable case that the PLA notice was not valid, and I considered that there was a reasonable possibility that Prestige would succeed on the merits. Further applying the test, I accepted that Prestige was likely to suffer harm that would not be adequately remedied by an award of damages if the application were not granted and that the harm that would be suffered by Prestige if the application were not granted substantially outweighed any harm that was likely to result to MTC if I were to grant the measures sought.

[7]Prestige therefore succeeded on its application.

[8]        The orders I made were as sought in Prestige’s amended application of 4 February 2021 and included a direction that MTC (including its directors, agents and contractors and specifically Stephen Penney, one of two directors of MTC):5

[65](f) … reinstate all property moved from or around the premises by MTC, including but not limited to signage, the emergency power generator and televisions belonging to Prestige.

[6]                 Also relevant for the purposes of this application are two further paragraphs from the second judgment:

[16]      In his affidavits, Uditha Pallewatte, the director of Prestige, said that the power generator belonging to Prestige had been removed from the premises. Other property, including eight televisions packed in wooden pallet boxes had also been removed. The application was called before the Duty Judge on 3 February 2021. Counsel appeared for Prestige and Mr Pallewatte and his family attended Court. Mr Penney and his co-director appeared for MTC with the leave of the Court. Prestige’s position in its affidavit evidence was that at the call on 3 February 2021, Mr Penney admitted to the Court that he had removed property belonging to Prestige from the premises. Prestige’s position is that Mr Penney specifically admitted he had removed Prestige’s signage and power generator.

[17]      The Duty Judge made interim orders including that “… nothing shall be altered or removed from the premises pending further order of this Court”.

4      Safe Kids in Daily Supervision Ltd v McNeill [2012] 1 NZLR 714 (HC) at [18].

5      Prestige Motors Ltd v My Trustee Co (Nikolas and Petra) Ltd, above n 2, at [65](f).

[7]                 The second judgment was given on an application by MTC for “correction” of [65](f) set out above by deletion of the words “the emergency power generator and televisions” from that paragraph. I refused MTC’s application. The Court has not received any advice to the effect that an appeal to the Court of Appeal has been filed.

[8]However, the Court is advised that the matter proceeded to arbitration.

The present application

[9]                 On 10 February 2022 Mr Purusram, counsel for MTC, filed a memorandum in which it is stated:

2.The dispute has been referred to arbitration. For the purposes of arbitration, the Respondent seeks a copy of the transcript and/or the Judge’s handwritten notes for the call-over held on 17 January 2021.

3.There are disputes about what was stated by the parties during the call- over held on 17 January 2021 and so it is important that the transcript and/or the Judge’s handwritten notes for the call-over are released.

4.The call-over was attended by  the  directors  of  the  Respondent  Mr Stephen Charles Penney and Ms Nichola Jane Keast on behalf of the Respondent and this was prior to the Respondent being represented by Counsel.

[10]             The memorandum also states that counsel was advised that Mr Penney had sought a copy of the transcript via emails and by contact with the Court but that despite those requests and follow up, the Court had provided no response to date. My inquiries have not turned up any evidence of such requests either in 2021 or 2022. However, I do not make any findings in that regard.

[11]             Counsel for Prestige responded by way of a memorandum dated 15 February 2022. I have referred to Prestige’s position in [3] above.

[12]The Court then issued a minute of 17 February 2022 asking Mr Purusram to:

[2]       …

(a)Clarify the date of the event for which My Trustee Company seeks a transcript and/or the Judge’s handwritten notes; and

(b)Provide reasons as to why the Court should exercise its discretion to grant the application. In particular, the Court notes the advice in the

memorandum on behalf of Prestige that the arbitral hearing to which My Trustee Company  refers  in  its  memorandum  concluded  on  13 December 2021 and the parties are currently awaiting the arbitrator’s award.

[13]             Mr Purusram filed a memorandum dated 17 February 2022 correcting the date for the Duty Judge list and providing some reasons to support the application. The memorandum contained the following:

4.The matter has been referred to arbitration.   Counsel is advised that  the hearing has been concluded but the award has not yet been made and the parties are still sorting our additional advance cost payment to their respective lawyers’ trust account. MTC has advised its intention to get leave and file the transcript and notes as soon as they are released.

[14]             It was not clear from the above paragraph whether MTC’s “intention” was advised to counsel for MTC or the arbitrator.

[15]             Mr Purusram filed a further memorandum of 21 February 2022 in which he sought to clarify paragraph 4 above. The memorandum states:

4.In relation to the last sentence of paragraph 4 of the former memorandum, counsel wishes to clarify that Mr Penney has advised that IF MTC receives the transcript, then MTC will make an application or such request to introduce the transcript into the arbitration.

5.For avoidance of doubt, counsel has not obtained any direction nor has counsel received any written confirmation from the Arbitration or MTC that such an application is underway, or has been indicated to the arbitrator or has been approved. Counsel understands from the string of emails noted above [not annexed to memorandum] that the arbitration proceedings have been closed for new evidence (unless there are exceptional circumstances).

[16]             As to the relevance of the Judge’s notes and transcript Mr Purusram submitted in his 17 February 2022 memorandum as follows:

5.	…
(i)	During the course of the arbitration proceedings, the
Applicant and its counsel has alleged that the director of the
Respondent, namely, Mr Stephen Charles Penney had said
during the call over on 3 February 2021 that he had taken the
Applicant’s property, namely the satellite dishes, the
televisions and other property left outside the premises.
Numerous affidavits being declarations on oath were filed.

(ii)Counsel is advised that this is still a live and relevant matter for the Arbitration and parties have filed their respective statements in evidence in relation to that issue; there are conflicting versions before the arbitration.

(iii)MTC’s position is that Mr Penney never made any such statement during the Hearing and nor did he take any of the Applicant’s property as alleged by the Applicant and its counsel.

(iv)MTC’s position is that the evidence in relation to those matters will prove lying on oath and are relevant for the purposes of disproving allegations and establishing bad character and lack of credibility.

The law

[17]             Section 173(1) of the Senior Courts Act 2006 provides any person may have access to court information of a senior court to the extent provided by, and in accordance with, rules of the court. The relevant rules are the Senior Courts (Access to Court Documents) Rules 2017 (the Rules). The relevant provisions of the Rules for present purposes are sub-rr 9(1), (2) and (5) which provide:

(1)The parties to a civil proceeding and the parties’ lawyers may, under the supervision of the Registrar or a person appointed by the Registrar,−

(a)    search and inspect the court file or any document relating to the proceeding, without paying a fee; and

(b)    copy any part of the court file or any document relating to the proceeding on paying the prescribed fee (if any).

(2)The right under subclause (1) may be exercised at any time.

…

(5)The general rights of the parties to civil proceedings, criminal proceedings and appeals, set out in subclauses (1) to (4), are subject to the following qualifications:

(a)    a record of a court proceeding in electronic form that is in the custody and control of the court may be copied only with the permission of a Judge:

(b)    a Judge may direct that the court file or any document relating to the appeal not be accessed by the parties or their lawyers without the permission of a Judge.

[18]In Zhang v Westpac New Zealand Ltd6 Associate Judge Paulson stated:

[33] A request from a party is not sufficient to warrant production of a transcript. The matter remains within the discretion of the Judge. As preparing a transcript of anything but the shortest of hearings will involve a significant use of court resources, good reason should be shown before an order to prepare a transcript is made.

[19]Previously in Siemer v Heron7 the Supreme Court said:

[9] … There are obvious resource implications if judges direct court registries to provide parties with transcripts of hearings of appeals and interlocutory matters generally on demand by litigants. For that reason, judges should always first satisfy themselves that there is good reason in the interests of justice for giving such directions. ...

Discussion

[20]             Factors which count against the granting of the application are first, the late stage at which the application was made. There was no request when the proceedings were live in this Court. Nor was a memorandum filed by counsel until after the arbitration hearing had concluded. Even if the Court accepts that Mr Penney made informal requests by email to the High Court Registry, the Court is not told when those requests were made.  The first request referred to me was MTC’s memorandum of  10 February 2022.

[21]             Second, there is no guarantee that a transcript of the hearing will capture what was said by Mr Penney. It is not explained where Mr Penney was in the Courtroom when he addressed the Court, i.e. whether he was speaking from the public gallery or at counsel’s table and speaking into a microphone.

[22]             On the other hand, the “hearing” being a call in the Duty Judge list would have been relatively short. The typing of a transcript will not involve a significant use of Court resources. Further MTC says that although the arbitration hearing has concluded there will be an application made to the arbitrator to adduce this further evidence. Although this Court is not in a position to assess whether the late evidence

6      Zhang v Westpac New Zealand Ltd [2019] NZHC 2797

7      Siemer v Heron (Recusal) [2011] NZSC 116, [2012] 1 NZLR 293.

would be admitted, it is said it goes to disproving allegations Prestige makes about Mr Penney’s conduct and what he is alleged to have admitted.

[23]             The matter is finely balanced but in the end I have determined that the balance tips in favour of making an order as sought by MTC. The order will apply only to a copy of the electronic record, not the Judge’s notes.

Result and order

[24]             I make an order that the electronic recording of the call of this proceeding before the Duty Judge on 3 February 2021 be transcribed and a copy of the transcript provided to both parties.

Gordon J