KAMO LANDSCAPE & QUARRY SUPPLIES LIMITED v WHANGĀREI HIGH COURT [2021] NZHC 1835

KAMO LANDSCAPE & QUARRY SUPPLIES LIMITED v WHANGĀREI HIGH COURT [2021] NZHC 1835[22 July 2021]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECIV-2020-488-83[2021] NZHC 1835BETWEEN KAMO LANDSCAPE & QUARRYSUPPLIES LIMITEDApplicantAND WHANGĀREI HIGH COURTFirst RespondentWHANGĀREI DISTRICT COURTSecond RespondentENVIRO 360 LIMITEDThird RespondentHearing: On the papersCounsel: J Robinson, Director of Kamo Landscape & Quarry SuppliesLimitedG Taylor for First and Second RespondentS M Henderson and P J Wilson for Third RespondentJudgment: 22 July 2021JUDGMENT OF WHATA JThis judgment was delivered by me on 22 July 2021 at 4.00 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Law, WellingtonHenderson Reeves Lawyers, Whangarei[1] This is an application by Mr Robinson, a director of Kamo Landscape &Quarry Supplies Limited (Kamo Landscape), for leave to appeal my decision of16 February 20211 to the Court of Appeal.[2] The substance of my decision may be stated briefly. Kamo Landscape soughtto judicially review a decision of the District Court, declining Kamo Landscape'sappeal from a decision of the Disputes Tribunal (the Tribunal). Kamo Landscapeclaimed, among other things, that the process adopted by the Tribunal was unfair andthat the District Court was wrong to uphold the Tribunal's decision. I rejected theapplication for review because I considered that:(a) the Referee carefully considered Kamo Landscape's primary claim;2(b) there was no procedural error or unfairness;3 and(c) finally, had there been an error: Kamo Landscape's claim could notsucceed given it would have had to repay the sum in dispute in anyevent.4[3] In terms of the application for leave, Mr Robinson maintains his basiccomplaint that there was a procedural error creating unfairness. The upshot is heeffectively wishes to reargue the matters that failed before the District Court andbefore me.[4] The application is opposed because:(a) it was filed late; and(b) Mr Robinson does not have standing to represent the applicant, KamoLandscape.1 Kamo Landscape & Quarry Supplies Ltd v Whangārei District Court [2021] NZHC 170.2 At [20].3 At [21].4 At [22].Assessment[5] Kamo Landscape does not require leave to appeal my decision to the Court ofAppeal,5 and any application for leave to appeal out of time is for the Court of Appealto determine.6[6] However, I assume for present purposes Mr Robinson is seeking leave to actfor Kamo Landscape given the decision of Lang J in his minute of 5 November 2020requiring Kamo Landscape to be represented by a solicitor.7 It is not clear that I havejurisdiction to revisit Lang J's decision. In any event, assuming I do, I am not satisfiedI should grant leave.[7] In some cases, the Court may exercise its discretion to allow a director toappear for a company. That will generally be in exceptional circumstances wherecounsel is unavailable, in straightforward matters where counsel is not required, orwhere it would be unduly technical or burdensome to insist on counsel.8 This is notone of those circumstances. Moreover, the rule requiring representation ensures acompany's and shareholder's interests are properly represented in any decision thecompany takes to litigate.9 Given that merits of the proposed appeal are inherentlyweak—simply seeking to relitigate evaluative matters already determined by twoCourts10—it is not obviously in the interests of the company to pursue an appeal. Inaddition, it does not appear this is an "emergency situation" where counsel isunavailable.11[8] Accordingly, to the extent I am able to revisit the decision of Lang J requiringthat the company be represented by a solicitor, I refuse leave to Mr Robinson to act5 Senior Courts Act 2016, s 56(1)(a).6 Where a party may appeal as of right to the Court of Appeal, they must do so within 20 workingdays after the date of the decision the party wishes to appeal: Court of Appeal (Civil) Rules 2005,r 29(1). If that time period has expired, a party may bring an interlocutory application for anextension of time under r 29A(1). The mode of bringing an interlocutory application under theCourt of Appeal (Civil) Rules is prescribed in r 27B.7 Re G J Mannix Ltd [1984] 1 NZLR 309 (CA); and Dreamtech Designs & Productions Pty Ltd vClownfish Entertainment Ltd [2015] NZCA 491, (2015) 23 PRNZ 141 at [8]-[10].8 Re G J Mannix Ltd, above n 7, at 314.9 Oceanic Palms Ltd v Kiwi Rail Ltd [2018] NZHC 679 at [23].10 See Central Equipment Company Ltd v Commissioner of Inland Revenue [2008] NZCA 42.11 Dreamtech Designs & Productions Pty Ltd v Clownfish Entertainment Ltd, above n 7, at [10],citing Re G J Mannix Ltd, above n 7, at 314.for Kamo Landscape. It will be a matter for the Court of Appeal to determine whetherMr Robinson may act for Kamo Landscape on any appeal to that Court.