HUM HOSPITALITY LIMITED v STYLO MEDICAL SERVICES LIMITED [2022] NZCA 120

HUM HOSPITALITY LIMITED v STYLO MEDICAL SERVICES LIMITED [2022] NZCA 120 [8 April 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA N/ACIV-2019-404-365[2022] NZCA 120BETWEEN HUM HOSPITALITY LIMITEDApplicantAND STYLO MEDICAL SERVICES LIMITEDRespondentCounsel: Applicant in person (by R Armitage)R O Parmenter for RespondentJudgment:(On the papers)8 April 2022 at 11.30 amJUDGMENT OF COOPER JThe Registrar's decision is confirmed.___________________________________________________________________REASONS[1] Ms Armitage has purported without leave to file an appeal in the name of HumHospitality Ltd (Hum). The appeal was not accepted for filing by the Registrar. Shehas now in effect sought a review of that decision.[2] It is unclear whether she has permission to represent the company, but I dealwith the present application on its merits.Background[3] In a judgment delivered in the High Court at Auckland on 11 November 2020,Brewer J found that Hum was in arrears in respect of rental payable under a lease fromStylo Medical Services Ltd (Stylo).1 The Judge held that Hum was liable to pay rentat the annual rate of $120,000 plus GST and that it was liable for rental arrears in thesum of $150,000. The Judge ordered Hum to pay that amount on account of arrearsof rental.[4] At [46]–[48], the Judge said:[46] If Hum does pay Stylo $150,000 as aforesaid, then the balance of thearrears of rental and any other arrears of payments due must be identified(including interest on all arrears at the rate of 14 per cent per annum) and paid.[47] If the parties cannot agree on quantum then each must file a furtheraffidavit and spreadsheet deposing to its view of what is outstanding andaddressing the other party's spreadsheet where there are differences. Theparties are also to file memoranda on how the dispute as to quantum is to beresolved. Stylo's affidavit and memorandum are to be filed by 14 December2020. Hum's affidavit and memorandum are to be filed by 5 February 2021.[48] Pending resolution of any dispute as to quantum, the lease will remainin force provided rental payments are paid on time. If Hum defaults on thepayment of any rental due, then unless Hum can show the non-payment wasremedied within 10 working days of being due, the lease is cancelled and Hummust forthwith give possession of the premises to Stylo.[5] Hum paid the arrears of $150,000 as required, but it did not make full paymentof the rent due on 1 January 2021 and it did not remedy its default within 10 workingdays. The terms of the judgment set out at [48] therefore took effect.2[6] On 2 February 2021, counsel for Stylo applied to the High Court on a withoutnotice basis to seal an order cancelling the lease and granting possession to Stylo. ForStylo, Mr Parmenter submitted that the application was simply a "clerical one", as asealed order would be relied on to support an application to the Court for a possessionorder. The order sought to be sealed cancelled the deed of lease dated 22 January 2011and granted immediate possession of the demised premises to Stylo, all ascontemplated by [48] of the substantive High Court judgment.1 Stylo Medical Services Ltd v Hum Hospitality Ltd [2020] NZHC 2969.2 The procedure contemplated by [47] to determine quantum has been followed and has given riseto a separate appeal, Hum Hospitality Ltd v Stylo Medical Services Ltd CA11/2022. That appealis not relevant to the issues that I need to address.[7] On 11 February 2021, Brewer J issued a minute directing that orders could besealed in the form provided. Ms Armitage now seeks that Hum be granted anextension of time to appeal to this Court against that minute.[8] She does so after having taken other steps. On 13 April 2021, Brewer J granteda stay of enforcement of the orders on the basis that Hum had applied to this Court foran extension of time to appeal the substantive High Court judgment.3 Hum'sapplication to this Court was filed on 6 April 2021, 66 days out of time. Although theCourt granted an extension of time on 13 August 2021, it did so subject to conditions.They were that Hum was to make payment to Stylo in the sum of $92,925.24 within14 days and that Hum was to prosecute its appeal with expedition.4 It was said thatthe appeal should be instituted within 14 days and would then be placed on the fasttrack. However, Hum did not comply with either of the conditions imposed. Instead,Hum applied to this Court to recall its decision. That application was dismissed on 9September 2021.5[9] On 26 November 2021 the High Court granted Stylo's application for an orderfor the arrest of Ms Armitage, on the basis that despite the Court's orders, Hum hadnot vacated and remained on the premises.6[10] In summary, Hum had been granted leave to appeal by this Court against thesubstantive High Court judgment, having sought and obtained leave to appeal subjectto conditions. Those conditions were not complied with. This meant, as noted byKós P in a minute of 26 November 2021, that Hum did not have leave to appeal.[11] Notwithstanding that history Ms Armitage has now purported to apply for anextension of time to appeal the minute of Brewer J approving the sealed orderscancelling the lease, dated 11 February 2021. The Registrar rejected the applicationfor filing on 10 December. That was on the basis that the minute of Brewer J wasdealing with an interlocutory application and leave of the High Court was thereforerequired under s 56(3) of the Senior Courts Act 2016. In correspondence to the3 Stylo Medical Services Ltd v Hum Hospitality Ltd [2021] NZHC 772.4 Hum Hospitality Ltd v Stylo Medical Services Ltd [2021] NZCA 377.5 Hum Hospitality Ltd v Stylo Medical Services Ltd [2021] NZCA 457.6 Stylo Medical Services Ltd v Hum Hospitality Ltd [2021] NZHC 3191.Registrar subsequent to that decision, Ms Armitage has argued that the minute ofBrewer J constituted a final determination, so that leave to appeal was not required.The Registrar has referred the matter to me on the basis that it might be treated as areview of his decision.[12] Section 56(3) of the Senior Courts Act 2016 provides that no appeal lies fromany order or decision of the High Court made on an interlocutory application in respectof any civil proceeding unless leave to appeal to this Court is given by the High Courton application made within 20 working days after the date of that order. It is only ifthe High Court refuses leave that this Court is empowered to grant leave under s 56(5).[13] The Senior Courts Act defines an "interlocutory application" as follows:7interlocutory application—(a) means any application to the High Court in any civil proceedings orcriminal proceedings, or intended civil proceedings or intendedcriminal proceedings, for—(i) an order or a direction relating to a matter of procedure; or(ii) in the case of civil proceedings, for some relief ancillary tothat claimed in a pleading; and(b) includes an application to review an order made, or a direction given,on any application to which paragraph (a) applies[14] The terms of the substantive High Court judgment issued on 11 November2020 were in effect self-executing. Upon Hum failing to pay the rent due and failingto rectify that situation within 10 working days, the lease was cancelled and Stylobecame entitled to possession, as provided for in the judgment. Hum was subsequentlygranted leave to appeal against that decision out of time but did not comply withconditions which this Court imposed and consequently lost the right to appeal.[15] The order made on 11 February 2021 did not do anything other than implementthe orders already granted in the substantive High Court judgment. I consider it canproperly be described as interlocutory in nature.7 Senior Courts Act 2016, s 4.[16] I consider it follows that Hum does not have an appeal as of right to this Courtin respect of the minute of 11 February 2021. It must seek leave from the High Courtto do so. It will be for that Court to consider in the context of any application madethe implications of the history set out above.Result[17] The Registrar's decision is confirmed.