NAVARATNAM v HG METAL MANUFACTURING LIMITED [2022] NZCA 425

NAVARATNAM v HG METAL MANUFACTURING LIMITED [2022] NZCA 425 [8 September 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA692/2020[2022] NZCA 425BETWEEN VASHIHARAN NAVARATNAMFirst AppellantSHERINE NAVARATNAMSecond AppellantAND HG METAL MANUFACTURINGLIMITEDRespondentCA152/2022BETWEEN VASHIHARAN NAVARATNAMFirst AppellantSHERINE NAVARATNAMSecond AppellantAND HIGH COURT AT AUCKLANDFirst RespondentHG METAL MANUFACTURINGLIMITEDSecond RespondentHearing: 18 July 2022Court: Courtney, Thomas and Peters JJCounsel: First Appellant in Person for CA692/2020 and CA152/2022Second Appellant in Person in CA692/2020 and CA152/2022T B Fitzgerald and B J Dominikovich for Respondent inCA692/2020 and Second Respondent in CA152/2022No appearance for First Respondent in CA152/2022Judgment: 8 September 2022 at 11 amJUDGMENT OF THE COURTA The appeal in CA692/2020 is struck out.B The appeal in CA152/2022 is struck out.C Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Courtney J)Introduction[1] In September 2014 Mr and Mrs Navaratnam guaranteed the payment of moneyowed by Gayathri Steels Pte Ltd to HG Metal Manufacturing Ltd (HG Metal). Theyfailed to pay the outstanding amounts. A Singaporean arbitrator issued an award(Award) dated 23 April 2020 finding that Mr and Mrs Navaratnam were jointly andseverally liable to HG Metal for SGD 404,736.10 and USD 1,230,187.73, togetherwith interest and the fees and expenses of the arbitration.[2] Mr and Mrs Navaratnam did not meet the Award. By October 2020 they wereliving in New Zealand. HG Metal applied pursuant to art 35 of sch 1 of the ArbitrationAct 1996 for recognition and enforcement of the Award. That application triggered alengthy procedural battle between HG Metal and Mr and Mrs Navaratnam that hasculminated in the present applications by HG Metal to strike out two appeals broughtby Mr and Mrs Navaratnam.[3] In October 2020, Woolford J entered judgment against Mrs Navaratnam bydefault.1 Mr and Mrs Navaratnam both appealed that judgment (Mr Navaratnam onthe ground that the sealed judgment created a liability for him as well). HG Metalapplies to strike out the appeal on the ground that Mr and Mrs Navaratnam have failedto comply with court directions.21 HG Metal Manufacturing Ltd v Navaratnam HC Auckland CIV-2020-404-001955, 22 October2020 (Minute of Woolford J).2 Court of Appeal (Civil) Rules 2005, r 44A(1)(a).[4] In July 2021, following a defended hearing, Katz J entered judgment againstMr Navaratnam.3 Having been refused an extension of time to appeal,4Mr Navaratnam applied for judicial review of Katz J's decision. Jagose J struck outthe judicial review proceeding in March 2022.5 Mr Navaratnam has appealed JagoseJ's decision. HG Metal applies to strike out the appeal on the ground that it is an abuseof process.6[5] In both appeals Mr and Mrs Navaratnam raise the same substantive complaint.They say that HG Metal has not satisfied the statutory requirements for recognitionand enforcement of the Award under the Arbitration Act because it has not provided aproperly authenticated copy of the Award itself. They say that, as a result, noobligation has arisen for them to take any steps in the proceeding.Jurisdiction[6] Rule 44A(1) confers the power to strike out or stay an appeal on specifiedgrounds. Relevantly, these include that the appellant is in continuing default incomplying with any of the rules and that the appeal is an abuse of the process of theCourt.7 Depriving an appellant of the right to have their appeal determined on itsmerits is a step that is only taken with great caution. However, Fisher J's observationsin Smith v Antons Trawling Co Ltd are apt:8[3] These days we try to decide cases on their merits if we possiblycan. Cases should not lightly be dismissed on purely technical or proceduralgrounds. On the other hand there comes a point at which the victim ofprocedural default is entitled to justice too. [7] In cases of persistent, unjustified or wilful non-compliance with proceduralrules, striking out an appeal may be warranted.[8] The abuse of process ground generally captures all instances of misuse of thecourt's processes not falling within other specific grounds provided in r 44A.3 HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 1920 [Judgment of Katz J].4 Navaratnam v HG Metal Manufacturing Ltd [2021] NZCA 704 [Court of Appeal extension oftime judgment].5 Navaratnam v High Court of Auckland [2022] NZHC 371 [Judgment of Jagose J].6 Court of Appeal (Civil) Rules, r 44A(1)(c).7 Rule 44A(1)(a) and (c).8 Smith v Antons Trawling Company Ltd HC Auckland CL 40/98, 24 March 2000.It includes proceedings brought with an improper motive and attempts to relitigatematters that have already been determined.9Recognition and enforcement of an arbitral award[9] The purposes of the Arbitration Act include the encouragement of arbitrationto resolve commercial disputes, the facilitation of the recognition and enforcement ofarbitral awards and to give effect to New Zealand's obligations under the Conventionon the Execution of Foreign Arbitral Awards (1927) and the Convention on theRecognition and Enforcement of Foreign Arbitral Awards (1958).10 There is,accordingly, a general presumption in favour of the enforcement of foreign arbitralawards. This is reflected in the limited requirements to support an application forrecognition and enforcement under art 35 of sch 1 of the Act. An applicant is requiredonly to supply the duly authenticated original award or a duly certified copy, theoriginal arbitration agreement or a duly certified copy and, if those documents are notin English, a duly certified translation.[10] The grounds on which an application for recognition and enforcement can beresisted are limited to those specified in art 36. Although Mr and Mrs Navaratnaminitially sought to rely on some of these grounds, their main complaint was, andcontinues to be, that HG Metal failed to supply the duly authenticated Award asrequired by art 35(2)(a).Application to strike out appeal against decision of Jagose J (CA152/2022)[11] Although this appeal post-dates the appeal in CA692/2020, we deal with it firstbecause it provides a convenient means of addressing Mr and Mrs Navaratnam'scomplaint regarding the authentication of the Award.Katz J's decision[12] Mr Navaratnam raised a number of grounds in opposition to HG Metal'sapplication for recognition and enforcement. The first of these was a group of9 Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR679 at [89]; and Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC).10 Arbitration Act 1996, s 5.procedural complaints, including that HG Metal was not the party that filed theaffidavit that proved the matters required by art 35(2) and that the Award had not beenproperly authenticated or certified. Katz J found that none of these complaints hadany substance.11[13] The affidavit filed in support of HG Metal's application was sworn by itsSingaporean solicitor, Mr Chow Jie Ying. This complied with art 35(2) — there is norequirement that the supporting affidavit be sworn by a director or employee ofHG Metal. Mr Chow annexed to his affidavit a duly certified copy of the Award.Katz J was satisfied that the Award had been properly certified:[24] The Award has clearly been properly certified. It is sealed on the firstpage where it says, "Registered in SIAC Registry of Awards as: Award No.059 of 2020 on 24 April 2020". Mr Chow has provided expert evidence thatthis is all that is required as a matter of Singaporean law.[14] The Registrar was directed to enter the Award as a judgment againstMr Navaratnam.12Mr Navaratnam is refused an extension of time to appeal[15] Mr Navaratnam filed his notice of appeal against Katz J's decision slightlyoutside the prescribed time. He applied for an extension of time. In considering theapplication this Court noted that some of his proposed grounds were plainly nottenable.13 Otherwise two broad grounds of appeal were proposed. One of these wasthat HG Metal had failed to discharge the onus required under art 35(2) to provideproper authentication of the Award and the arbitration agreement.14 In considering themerits of the proposed appeal this Court said:[22] Mr Navaratnam has not identified any specific error by the Judgein finding that the award was properly certified. Given that this ground doesnot appear in the proposed notice of appeal and that Mr Navaratnam's affidavitcontains nothing to support his assertion regarding authentication we cannotsee the basis on which Mr Navaratnam might impugn the Judge's finding.11 Judgment of Katz J, above n 3, at [22].12 At [49].13 Court of Appeal extension of time judgment, above n 4, at [15].14 The other broad ground related to the way the Judge had dealt with Mr Navaratnam's argumentabout the underlying guarantee, which he asserted was precluded as a source of liability by relatedlitigation between the parties.[16] This Court had regard to the lack of any apparent merit in the proposed appealand Mr Navaratnam's unsatisfactory conduct in the proceeding generally, includingnumerous instances of non-compliance with timetable directions in the face ofwarnings from the Court. It concluded that, although the delay in filing the notice ofappeal was short, the interests of justice did not require an extension of time to begranted.15The judicial review proceedings and Jagose J's decision[17] The decision declining Mr Navaratnam's application for an extension of timewas delivered on 20 December 2021. In early 2022 Mr Navaratnam filed anapplication for judicial review of Katz J's decision. In the course of the hearing beforeus Mr Navaratnam advised that he had brought the judicial review proceedings as aresult of having been refused an extension of time to appeal the judgment.[18] The Registrar of the High Court referred the judicial review proceeding toJagose J under r 5.35A of the High Court Rules 2016 which permits a Registrar torefer proceedings to a Judge if they believe, on the face of the proceeding, that theproceeding is plainly an abuse of the process of the court. Rule 5.35B empowers aJudge, on their own initiative, to make an order or give directions to ensure theproceeding is disposed of or proceeds in a way that complies with the High CourtRules. This includes an order that the proceeding be struck out. Jagose J said:16[5] Even at judicial review's widest conception, decisions of this Courtand its judges — including in all the senior courts, distinctly from inferiorcourts of limited jurisdiction — are not susceptible to it, as contrary toprinciples of finality and legality. Save for this Court's inherent power torevisit its decisions in exceptional circumstances when required by theinterests of justice, any dissatisfaction with its decisions can only be taken upon appeal, where available.[6] In very significant part, looking past its judicial review veneer, thisproceeding embodies the applicants' dissatisfaction with the substance of thisCourt's impugned decisions. No exceptional circumstance is evident. Assuch, I am satisfied this proceeding plainly is an abuse of the Court's process.An abuse is "improper use of [the court's] machinery"; use of that process "fora purpose or in a way significantly different from its ordinary and proper use".15 At [32].16 Judgment of Jagose J, above n 5 (footnotes omitted).Here, as I have explained, that is the proceeding's improper attempt to obtainjudicial review of this Court's decisions. The applicants can have noreasonably arguable case to claim it.[19] The Judge accordingly struck out the claim and dismissed the proceeding.Application to strike out appeal against Jagose J's decision[20] Mr Navaratnam filed a notice of appeal against Jagose J's decision on25 March 2022.17 Essentially, Mr Navaratnam maintains that judicial review isavailable as a means of challenging Katz J's decision. The substantive ground hewishes to raise is that HG Metal failed to satisfy the requirement of art 35(2) to providea duly authenticated or duly certified copy of the Award and arbitration agreement. Hemaintains that service of HG Metal's original application for enforcement wastherefore invalid.[21] Mr Fitzgerald, for HG Metal, submitted that the appeal against Jagose J'sdecision effectively seeks to relitigate matters that had already been determined andthat, in any event, there is no merit to the arguments: the Award was properly certified;there was no breach of natural justice in relation to the arbitration; the arbitrationagreement was effective; and there is no substance in the complaint that HG Metal'ssolicitors had sworn evidence on its behalf or that service of HG Metal's applicationfor enforcement was invalid. Rather, the judicial review appeal was brought with anobjective of delaying enforcement of the Award.[22] In this regard, Mr Fitzgerald argued that the judicial review proceeding oughtto be viewed against the proceedings brought by HG Metal in early 2022 seeking tohave Mr Navaratnam adjudicated bankrupt. The first call of that application was 3March 2022. Mr Navaratnam relied on the fact of the judicial review proceedings tooppose the bankruptcy application. He was directed to file affidavits in support of hisopposition to the bankruptcy application by 25 March 2022, which he failed to do.Instead, on 25 March 2022, he applied for a "[s]tay of proceeding and or stay ofenforcement proceedings or execution enforcement proceedings" (filed in17 The notice of appeal also purported to appeal the decisions of Woolford J entering judgmentagainst Mrs Navaratnam and Katz J entering judgment against Mr Navaratnam, neither of whichwere amenable to appeal as a result of the procedural history just outlined.CA692/2020 but seeking a stay in respect of both proceedings). The Registry declinedto accept the stay application, directing Mr Navaratnam to file in the High Court.Instead, he applied, unsuccessfully, to review the Registrar's decision.18[23] In these circumstances, Mr Fitzgerald submitted, the appeal against Jagose J'sdecision had to be regarded as an abuse of process and was therefore amenable tobeing struck out.[24] Mr Navaratnam filed a memorandum dated 16 June 2022 in respect of bothappeals. The focus is very much on his assertion that the Award and the arbitrationagreement were not properly authenticated in accordance with art 35(2). Othergrounds simply reflect consequences of that argument — relevantly that the lack ofproper authentication meant Mr Navaratnam's statutory appeal rights had beenprematurely declined because of his assertion of a right to have the presumptivevalidity of the Award determined.Decision[25] The Judge's statement of the law — that decisions of the High Court and itsJudges are not susceptible to judicial review — is unquestionably correct.19 Katz J'sdecision is not amenable to judicial review. The decision of a High Court Judge muststand, subject only to being set aside on appeal or pursuant to the Court's inherentpower to reopen its decisions when required by the interests of justice.20Mr Navaratnam had a right of appeal, which he failed to exercise within the requisitetimeframe. The principle of finality, which exists for the benefit of all litigants and toensure the efficient use of scarce judicial resources, dictates that that is an end of thematter.[26] Mr Navaratnam's efforts to circumvent the principle of finality through thejudicial review process and, in doing so, to relitigate an issue already determined in18 Navaratnam v High Court of New Zealand at Auckland [2022] NZCA 156.19 Young v Police [2007] NZCA 339 at [25]; Nicholls v Registrar of the Court of Appeal [1998] 2NZLR 385 (CA) at 414, 435 and 455; Bulmer v Attorney-General (1998) 12 PRNZ 316 (CA) at318; and Re Racal Communications Ltd [1981] AC 374 (HL) at 384, 386 and 392.20 Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 350 at [20]–[22]; and R v Smith [2003] 3 NZLR 617 (CA) at [46]–[49].the High Court is an abuse of process. The appeal ought not to be permitted to proceedfurther. We accept HG Metal's submission that it should be struck out.Application to strike out appeal against Woolford J's decision (CA692/2020)[27] HG Metal's application for recognition and enforcement came on for a firstcall before Woolford J on 22 October 2020. Mr Navaratnam appeared, butMrs Navaratnam did not. The Judge dealt first with Mr Navaratnam's situation andset a timetable for steps towards a defended hearing.21[28] The Judge then turned to Mrs Navaratnam's position, noting that she had takenno steps within the time specified for doing so. He directed the Registrar to enter theaward as a judgment against Mrs Navaratnam as soon as practicable in terms ofr 26.26(1) of the High Court Rules.22[29] HG Metal sealed the order on 22 October 2020. The terms of the order, assealed, included:2. The Award requires the second defendant (jointly and severally withthe first defendant) to pay the plaintiff:(a) The sum of SGD 404,736.10;(b) The sum of USD 1,230,187.73;[30] One of Mr Navaratnam's complaints (albeit not raised at the time) is that theorder, as sealed, did not accurately reflect Woolford J's decision; the Judge had enteredjudgment solely against Mrs Navaratnam whereas the sealed order recorded a liabilityby Mr Navaratnam jointly and severally with his wife.[31] Mr and Mrs Navaratnam both appealed Woolford J's decision. The notice ofappeal was filed slightly out of time, on 26 November 2020 together with anapplication for extension of time.23 In March 2021 Mr and Mrs Navaratnam were21 The defended hearing later proceeded before Katz J, as discussed.22 Minute of Woolford J, above n 1, at [8].23 This appears to be the first point at which Mr and Mrs Navaratnam refused to accept HG Metalwas entitled to be represented by its solicitors. Their failure or refusal to serve HG Metal'ssolicitors with documents has been a feature throughout the litigation.granted an extension of time to file the notice of appeal. HG Metal itself applied fora hearing date. However, there was no progress towards a hearing. Mr andMrs Navaratnam obtained a number of extensions in respect of payment of securityfor costs and filing the case on appeal. On 1 November 2021, Goddard J granted onelast extension, requiring compliance by 10 November 2021, failing which the appealwould be deemed to be abandoned. That direction was not complied with.[32] In December 2021 the Court indicated that no further extensions of time wouldbe granted. It notified Mr and Mrs Navaratnam that it intended, on its own motion, toconsider striking out their appeal.[33] Security for costs was paid on 19 January 2022.[34] In a decision delivered on 13 May 2022, the Court concluded "by the finest ofmargins" that the interests of justice required that the appeal not be struck out but,instead, determined promptly on its merits.24 The Court observed that theNavaratnams had "repeatedly failed to comply with the requirements of the Rules andtimetable directions ".25 It accepted HG Metal's submission that the delaysappeared to have been deliberate. Referring to the Court's judgment declining anextension of time in Mr Navaratnam's related appeal against Katz J's decision, theCourt observed that the merits of the appeal did not seem strong. Nevertheless, theissues in the two appeals were not identical and Mr Navaratnam's unsatisfactoryconduct in the High Court and in his appeal ought not to be attributed toMrs Navaratnam.26[35] The Court added:[20] The appeal relates to a judgment against Mrs Navaratnam.Mr Navaratnam is a party, and is entitled to be heard. But he is not entitled torepresent Mrs Navaratnam, and in light of the concerns previously expressedabout his conduct of related proceedings it would not be appropriate to granthim leave to represent his wife in connection with the future conduct of thisappeal or at the hearing. Mrs Navaratnam's submissions, and any otherdocuments filed on her behalf, must be signed by her personally or by counselacting for her. At the hearing of the appeal Mrs Navaratnam may be24 Navaratnam v HG Metal Manufacturing Ltd [2022] NZCA 185 at [16].25 At [15].26 At [16].represented by counsel, or may appear in person. Mr Navaratnam may notappear for her. If she does not appear by counsel or in person at the hearingof the appeal, she will be treated as unrepresented.[21] Mr Navaratnam can of course continue to represent himself. But hisrole in this appeal against a judgment against Mrs Navaratnam is very much asecondary one. [36] The Court made timetable directions including the filing of written synopsesof argument by 27 May 2022 and the payment of costs of $2,390 to HG Metal by thesame date. It emphasised that there were to be no further delays in Mr andMrs Navaratnam complying with the timetable directions.27[37] The Navaratnams did not comply with the timetable directions.Mr Navaratnam filed the memorandum already referred to on 16 June 2022 (withoutserving it on HG Metal). He filed submissions on 14 July 2022. Mrs Navaratnamfiled a memorandum dated 18 June 2022 on the morning of the hearing of HG Metal'sapplication. As at the date of the hearing the costs had not been paid.Difficulties at the hearing of the strike out application[38] The week before the appeal hearing Mr and Mrs Navaratnam filed anapplication to review the timetable directions. We are satisfied that this applicationwas filed in an effort to forestall the hearing of HG Metal's strike-out applications.The Court declined to deal with the application prior to the scheduled hearing date.[39] The day before the hearing date Mr Navaratnam requested that he andMrs Navaratnam be permitted to appear by VMR. On further inquiry it appeared thatthere were childcare problems. The Court indicated that it would permit either Mr orMrs Navaratnam to appear by VMR so that the other could attend Court. On themorning of the hearing there were considerable difficulties linking Mrs Navaratnaminto the hearing. Ultimately, it was not possible to do so.[40] Mr Navaratnam handed up the memorandum by Mrs Navaratnam. Unable tosuccessfully join Mrs Navaratnam to the Court hearing, we eventually telephoned her27 At [22]–[23].from the Court and asked her to confirm that the memorandum was hers and had beensigned by her, which she did.HG Metal's application to strike out[41] HG Metal relies on Mr and Mrs Navaratnam's failure to comply with thedirections made by the Court in relation to this appeal. The application is made in thecontext of Mr Navaratnam's conduct in the underlying litigation. HG Metal arguesthat the failure by both Mr and Mrs Navaratnam to comply with directions by the Courtis wilful.[42] Mr and Mrs Navaratnam take the position that HG Metal failed to comply withthe requirement in art 35(2) to supply an authenticated or duly certified award andarbitration agreement and they are under no obligation to respond to its application forrecognition and enforcement until after it has established the validity of the Award.In the memorandum of 11 June 2022, under the heading "The time tabling orders andcost award issued on [2022] NZCA 185", Mr Navaratnam stated that:(b) Hg Metal has not proven the presumptive validity of theaward as required under Article 35(2) and according to therelief the Navaratnam's (sic) sought, it was a prerequisite tohave [Mrs Navaratnam's] grounds challenge to be heardunder Article 36 and that requirement has not been met.(c) The non-compliance is also dispositive of the issue of serviceon [Mrs Navaratnam] because in order for service to beeffective, there ought to be a valid award and arbitrationagreement filed which proves matters under Article 35(2).There is no such filing and any argument otherwise isdisplaced by the evidence.(d) Accordingly neither Navaratnam's (sic) have an obligation torespond under 26.27 of the [High Court Rules] requestingreview of the award under article 36(1)(a).(f) [Mr Navaratnam] will not allow [Mrs Navaratnam] to respondas Hg Metal has not satisfied the requirements under Article35(2) and by way of that requirement the terms of theArbitration Agreement they used to obtain the Award.Satisfying the requirements in Article 35(2) is a prerequisiteand a right that is afforded to her and if and when Hg Metaldecides to submit the relevant documents and[Mrs Navaratnam] is validly served [in] accordance to thelaws applicable to her, a response from her will be rightfullyforthcoming. Until such time that happens [Mr Navaratnam]is doing what the Judiciary ought to do – protect her rightsunder the Arbitration Act 1996 and therefore he should not bepenalised for his actions.(g) For the above reasons, the Navaratnam's (sic) have notcomplied with the time tabling directions and the directionsought to be deferred until determination is made underCA152/2022.30. The Cost Award. The circumstances particularized below shows thatthe Navaratnam's (sic) did not progress the appeal on CA692/2020, asof right and penalizing them with a cost order does not do justice. Itis reward for the plaintiff for not complying with its obligations andtherefore the Navaratnam request the cost order to be recalled.[43] Mrs Navaratnam did not wish to make any submissions beyond the contents ofher memorandum dated 18 July 2022. In that memorandum she stated: [Mrs Navaratnam's] position is that she is of the view that she has noobligation to respond to an award and arbitration agreement that does notcomply to Article 35(2) requirements [44] We infer that Mrs Navaratnam's position is the same as that taken byMr Navaratnam — that HG Metal has not satisfied the requirements of art 35(2) and,as a result, she has no obligation to respond to its application.[45] Mr Navaratnam also drew attention to his complaint that the order, as sealed,rendered him jointly and severally liable, even though Woolford J only enteredjudgment against Mrs Navaratnam. Mr Fitzgerald pointed out that the sealed orderreflected the terms of the Award but accepted that it recorded the judgment as havingbeen entered against both Mr and Mrs Navaratnam, even though Woolford J had onlyentered judgment against Mrs Navaratnam.Decision[46] The procedural history we have outlined is far from complete in terms ofMr and Mrs Navaratnam's failure to comply with High Court Rules and specificdirections of this Court. It is evident from the matters that we have specificallyaddressed that there have been repeated failures to comply. Moreover, we are satisfiedbeyond doubt that these omissions have been wilful, and are a deliberate attempt todelay and forestall progress by HG Metal towards resolving its original application forrecognition and enforcement.[47] Mrs Navaratnam chose not to take any steps in opposition to HG Metal'sapplication. She and Mr Navaratnam now advance an argument that is not tenable.On its face, HG Metal's application satisfied art 35(2) and that issue has been thesubject of a specific finding by Katz J which (as we have explained) is not able to bechallenged. Nor can Mr Navaratnam's complaint regarding the terms of the sealedorder, while valid, assist him in the question of whether the appeal should be struckout. It could only have had a practical effect if HG Metal had attempted to enforcethat judgment against Mr Navaratnam, in which case he would have a defence to suchaction. But HG Metal did not, and will not, take that course because it has thejudgment entered against Mr Navaratnam by Katz J, which it has been attempting toenforce.[48] Mr and Mrs Navaratnam have deliberately attempted to delay progress of thisappeal. They have failed to comply with numerous directions of the Court, even inthe face of express warnings from the Court about the need to comply. There is nodiscernible merit in the appeal that would justify further latitude. The point has beenreached where HG Metal's rights should be recognised. We are satisfied that this isan appropriate case in which the power to strike out the appeal for continuing defaultin compliance with court rules and directions is appropriate.Result[49] The appeal in CA692/2020 is struck out.[50] The appeal in CA152/2022 is struck out.[51] At the conclusion of the hearing, HG Metal indicated that it was seekingindemnity costs in respect of the strike-out applications on the basis that the guaranteecontains an indemnity clause under which Mr and Mrs Navaratnam are required toindemnify HG Metal in full against the cost of enforcing the guarantee, includingsolicitor/client legal fees. However, there were no details provided of the costsincurred.[52] Mr Navaratnam's liability for indemnity costs under the guarantee was thesubject of an express finding by Katz J.28 As a result, his liability for indemnity costsin this Court must be regarded as having been determined. Katz J was not howeverconcerned with Mrs Navaratnam's liability. Although it would seem clear thatMrs Navaratnam is also liable for indemnity costs she ought to be given theopportunity to address the matter.[53] We direct that:(a) HG Metal is to file a memorandum as to costs by 23 September 2022.(b) Mr and Mrs Navaratnam may respond by filing a memorandum in replyby 30 September 2022.[54] There will be no extensions of time for filing of these memoranda. The issueof costs will be determined on the papers.Solicitors:Bell Gully, Auckland for HG Metal Manufacturing Limited28 HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2498.