HUM HOSPITALITY LIMITED v STYLO MEDICAL SERVICES LIMITED [2021] NZCA 457

HUM HOSPITALITY LIMITED v STYLO MEDICAL SERVICES LIMITED [2021] NZCA 457 [9 September2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA176/2021[2021] NZCA 457BETWEEN HUM HOSPITALITY LIMITEDAppellantAND STYLO MEDICAL SERVICES LIMITEDRespondentCourt: Kós P and Brown JCounsel: B J Burt for AppellantR O Parmenter for RespondentJudgment:(On the papers)9 September 2021 at 10 amJUDGMENT OF THE COURTThe application for recall this Court's judgment in Hum Hospitality Ltd vStylo Medical Services Ltd [2021] NZCA 377 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Kós P)[1] On 13 August 2021 we granted Hum's application for an extension of time toappeal, despite its failure to adequately explain delay and our assessment ofthe apparent merits of the appeal as neither strong nor, exactly, hopeless.1[2] The application was granted subject to conditions. First, that Hum makepayment to the respondent, Stylo, of the sum of $92,925.24 within 14 days, that being1 Hum Hospitality Ltd v Stylo Medical Services Ltd [2021] NZCA 377.the sum likely due by way of arrears as a consequence of the High Court's judgment.2Secondly, that Hum was to prosecute its appeal with expedition, with the appeal beinginstituted within 14 days and then placed on the fast track.3[3] Application for recall of judgment has been filed by Hum on the basis thejudgment contains an error. Indeed, it does. At this level of the judicial hierarchy, wecannot claim infallibility.[4] The error is the observation at [21] of the judgment that Stylo was holding anunstayed judgment entitling cancellation of Hum's lease. However, we hadoverlooked a stay granted by Brewer J on 13 April 2021.4[5] At this point, the alert reader may be asking, why did the Judge grant that stay?The answer, unsurprisingly, was to permit Hum to advance its application in this Courtfor an extension of time to appeal.5[6] The rationale of [21] of the judgment of this Court was to require Hum to clearits likely arrears as a condition of being permitted to advance its belated, neither strongnor exactly hopeless, appeal. That is, the now-permitted appeal was not to be used asa stay de facto. The sum specified is not so evidently unsound as to be beyond sense,and Hum has not offered a more robust calculation of what it will be liable for if itloses. It follows the rationale for the first condition imposed on the grant of theextension of time to appeal is unimpaired by oversight of a stay granted pendingdetermination of the extension application.[7] These circumstances do not fall within the principles for recall of judgmentlaid down in Horowhenua County v Nash (No 2).62 At [4], [15] and [22]. See generally Stylo Medical Services Ltd v Hum Hospitality Ltd [2020]NZHC 2969.3 At [22].4 Stylo Medical Services Ltd v Hum Hospitality Ltd [2021] NZHC 772.5 At [9].6 Horowhenua County v Nash (No 2) [1968] NZLR 632 (HC).Result[8] The application for recall this Court's judgment in Hum Hospitality Ltd vStylo Medical Services Ltd [2021] NZCA 377 is declined.Solicitors:Winston Wang & Associates, Auckland for Respondent