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Vashiharan Navaratnam & Another v/s Hg Metal Manufacturing Limited

    CA No. 623 of 2021
    Decided On, 01 November 2021
    At, Court of Appeal of New Zealand
    By, THE HONOURABLE MR. JUSTICE BROWN
    For the Appellants: In Person. For the Respondent: T.B. Fitzgerald, Advocate.


Judgment Text
REASONS

[1] On 19 October 2021 Mr Navaratnam filed a notice of appeal in respect of two judgments of Katz J in the High Court at Auckland, namely a costs judgment[1] and a judgment on a recall application.[2]

[2] The Deputy Registrar accepted the notice of appeal insofar as it related to the costs judgment but rejected it insofar as it concerned the recall judgment. He explained:

We are unable to accept the notice of appeal as far as it relates to judgment [2021] NZHC 2497. This judgment dismissed an application for recall. Recall applications are interlocutory in nature, the appeal pathway for which can be found at section 56(3) of the Senior Courts Act 2016. As per this section, no appeal lies from any order or decision of the High Court made on an interlocutory application unless leave to appeal to the Court of Appeal is given by the High Court. If leave is declined, it can be sought directly from the Court of Appeal as per section 56(5).

If you do wish to appeal the recall judgment, you will first need to seek leave to appeal from the High Court.

Therefore, pursuant to rule 5A(1)(b)(ii) of the Court of Appeal (Civil) Rules, I am declining to accept this notice as far as it relates to the recall judgment on the basis that it should have been filed in another court instead.

[3] Mr Navaratnam has sought a review of the Deputy Registrar’s decision. I have conducted a review on the papers pursuant to s 49(6) and (7)(b) of the Senior Courts Act 2016.

[4] Mr Navaratnam advances two broad propositions in support of his review:

(a) his application in the High Court, the subject of the recall judgment, was not in substance a recall application; and

(b) in any event this Court should exercise its discretion to in effect waive the requirement to obtain leave to appeal.

[5] With reference to the first contention Mr Navaratnam makes the following points:

(a) The High Court erroneously characterised the application as a recall application notwithstanding that the application did not rely on r 11.9 of the High Court Rules 2016.

(b) The High Court was bound to hear and determine the application and Mr Navaratnam should not have been deprived of his right to be heard based on the form of his application or procedural issues.

[6] On this issue the context to the recall judgment is important. On 23 April 2020 an arbitrator in Singapore delivered an arbitral award against Mr Navaratnam and his wife in favour of the respondent. The respondent’s application in New Zealand seeking recognition and enforcement of the award was opposed by Mr Navaratnam. In a judgment dated 28 July 2021 Katz J granted the respondent’s application and directed the Registrar to enter the award as a judgment against Mr Navaratnam (the enforcement judgment).[3]

[7] On 26 August 2021 Mr Navaratnam filed in the High Court a document titled “Interlocutory Application with notice to Set Aside Judgment and or declare that the Arbitral Award entered as judgment cannot be enforced in New Zealand”. In the recall judgment Katz J considered that in substance Mr Navaratnam was seeking that the enforcement judgment be recalled, but as that judgment had been sealed on 12 August 2021 that was no longer possible. The Judge considered that she was functus officio and hence a reconsideration of the merits of the enforcement judgment could only be undertaken by this Court.[4] I understand that Mr Navaratnam has applied to this Court for an extension of time to appeal against the enforcement judgment.

[8] In my view the Judge correctly recognised that she was functus officio. Consequently Mr Navaratnam’s application of 26 August 2021 could only be viewed as a recall application irrespective of whether Mr Navaratnam expressly invoked r 11.9. The Judge was correct to decline that application in the circumstances where the enforcement judgment had been sealed and none of the recognised exceptions applied.

[9] In support of his second proposition Mr Navaratnam contends that having to make an application for leave to the High Court would result in delay. He submits:

The First Appellant thinks it is an unnecessary step to request for leave and therefore seeks the Honourable discretion to modify the decision made by the Registrar and accept Notice of Appeal as is. If the honourable Courts cannot circumvent this requirement, then the First Appellant will proceed with seeking leave from the High Court as required.

[10] The leave requirement for appeals from interlocutory decisions is imposed by the Senior Courts Act and neither the High Court nor this Court has a discretion to waive that requirement. Nor can leave be viewed as an “unnecessary step” given the high threshold for obtaining leave.[5] As the High Court Judge was clearly correct in her conclusion that she was functus officio, pursing a recall of that judgment would be an exercise in futility. Hence the prospects of obtaining leave to appeal from that judgment are on the face of it not promising.

[11] The appropriate avenue, as the Judge recognised, was an appeal to this Court from the enforcement judgment, a course which I have noted Mr Navaratnam is belatedly pursuing.

[12] In conclusion, Katz J was correct to view Mr Navaratnam’s application as one seeking recall. The recall judgment was an interlocutory one and hence leave to appeal is required under s 56(3). Leave not having been obtained, the Deputy Registrar proceeded correctly in declining to a

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ccept the notice of appeal so far as it related to the recall judgment. [13] The application for review of the Deputy Registrar’s decision is declined. ------------------------------------------------------------------------ [1] HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2498. [2] HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2497 [Recall judgment]. [3] HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 1920. [4] Recall judgment, above n 2, at [7] and [9]–[10]. [5] Greendrake v District Court of New Zealand [2020] NZCA 122 at [6].
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