HUM HOSPITALITY LTD v STYLO MEDICAL SERVICES LTD (2) [2016] NZHC 1867

HUM HOSPITALITY LTD v STYLO MEDICAL SERVICES LTD (2) [2016] NZHC 1867 [11 August 2016]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2016-404-000636[2016] NZHC 1867BETWEEN HUM HOSPITALITY LIMITEDPlaintiffAND STYLO MEDICAL SERVICES LIMITEDDefendantOn the papersJudgment: 11 August 2016JUDGMENT OF GILBERT J [On recall application]This judgment is delivered by me on 11 August 2016 at 3.30 pmpursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarCounsel:R O Parmenter, Barrister, AucklandCopy to:Plaintiff[1] In a judgment issued yesterday, I declined an application by Hum Hospitality Limited (Hum) for a stay of execution of a costs order of approximately $9,000 made by Courtney J in a judgment delivered on 27 June 2016. The application forstay was based on Hum's contention that it cannot afford to pay the costs and that,unless a stay is ordered, Hum will be unable to pursue its claim for damages in the substantive proceeding. This application was declined because Hum did not provide any evidence in Ms Armitage's 142 page supporting affidavit showing its assets, liabilities, income or expenses that would enable the Court and the plaintiff to scrutinise its claim of impecuniosity.[2] Rosanne Armitage, a director of Hum, has filed a memorandum asking me to recall the judgment. Ms Armitage says in her memorandum that she did not direct me to relevant information concerning Hum's financial position:Anticipating the affidavit to go to Courtney J, I was ill prepared to direct your honour to relevant information specific to the Stay on Cost Exemption, expecting to be given time at a future date to do so before her honour Courtney J. Her honour already, by way of Memorandum, been aware that our full accounts and financial situation are already before the Courts.[3] Ms Armitage claims that recall is appropriate in these circumstances. She relies on the third category of case referred to by Wild CJ in Horowhenua County v Nash (No 2), namely, where for some "very special reason justice requires that the judgment be recalled."1[4] Hum's application for recall should have been made by way of a formalapplication, not simply by filing a memorandum. Ms Armitage should not be representing Hum. My judgment gave reasons why this is unsatisfactory. The present application for recall confirms this. Nevertheless, I will deal with the application despite its deficiencies.[5] I do not accept that Ms Armitage was entitled to expect that "the affidavit" would "go to Courtney J." The matter was called before me in the Duty Judge List on 8 August 2016. It was stood down until 2.15 pm on the basis that I would hear the application and determine it. Ms Armitage can have been in no doubt about this;1 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.she was specifically advised that the matter would not be dealt with by Courtney J.Ms Armitage cannot have thought that she would be "given time at a future date" to draw the relevant information to the attention of Courtney J.[6] Ms Armitage did not annex the "full accounts" to her memorandum orotherwise identify where these can be found. I endeavoured, without success, to find any such accounts despite looking through four large boxes of materials filed in this proceeding and in related proceedings CIV-2012-404-5824, CIV-2013-404-4995 and CIV-2016-404-80.[7] After I completed that exercise, Ms Armitage sent an email to the Registrarheaded "Evidence from the file":Hey SharonI've been able to find;1) James Kidd affidavit dated 5th February file number 2016-404-80 which speaks to our getting stronger in regards to meeting our obligations. In did so to show to support that while we are late with our rental payments due to our financial situation we are not insolvent (sic).2) Rosanne Armitage affidavit (mine) dated 5th February 2016 13(f) where I make mention of our financial situation 2016-404-803) Rosanne Armitage affidavit (mine) dated 20th November 2012-CIV-404- 5824 lays out how the project works on volunteers and in my lastparagraph I note we operate "hand to mouth"Do you have Sam Miles email so I can do an email search by his address?[8] This is a wholly unsatisfactory process. The onus was on Hum to provide current evidence at the hearing to substantiate its claim of impecuniosity. Ms Armitage completed a lengthy affidavit in support of the application but it did not contain this information. Ms Armitage did not draw my attention to any other potentially relevant material at the hearing even though it was clear that this was the central issue. In my view, Hum must bear the consequences of its failure to provide relevant information to the Court at the hearing.[9] In any event, the evidence referred to in Ms Armitage's email does not supply the missing information. Contrary to her assertion, it does not contain "full accounts".[10] Mr Kidd's affidavit, sworn on 5 February 2016, does not assist Hum's claimthat it is impecunious. He says:I have been working with them over the last five or six months to ensure that they are financially strong and in a position to meet their commitmentsincluding their obligations under the lease agreement with the landlord. Ibelieve the financial models and methods that have been formalised place the business in a strong position to pay its debts.[11] Paragraph 13(f) of Ms Armitage's affidavit sworn on 5 February 2016 doesnot advance the position:The late payment of rent over the last two months has arisen because of the additional costs arising out of the litigation brought by the landlord. In particular, Hum had had to pay for a quantity surveyor required to confirm for the Court the work which had been undertaken. That expense caused a temporary difficulty which is in the process of being rectified. I explained this to Mr Ooi at the time, as I outline below.[12] Ms Armitage's affidavit sworn on 20 February 2012 in CIV-2012-404-5824 is also of no assistance to the present application. The statement Ms Armitage relies on in that affidavit is that:This project operates (financially) from hand to mouth.[13] This statement refers to the "project" and says nothing about the financialposition of Hum. It relates to February 2012 and does not assist in determiningHum's current financial position. The statement is, in any event, hopelessly vagueand unsubstantiated.[14] Applications to the Court must be properly supported with evidence and have to be decided on the evidence. Once a decision is made, it is generally too late toreopen the matter by directing the Court's attention to other evidence that could havebeen offered. In any event, the further material that Ms Armitage has drawn attention to would have made no difference to the decision.[15] I do not consider that there is any "very special reason" requiring that thejudgment be recalled in the interests of justice. The application for recall is dismissed._____________________M A Gilbert J