PRESTIGE MOTORS LTD v MY TRUSTEE COMPANY LTD [2022] NZHC 319

PRESTIGE MOTORS LTD v MY TRUSTEE COMPANY LTD [2022] NZHC 319 [1 March 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2021-404-80[2022] NZHC 319IN THE MATTER of Articles 9, 17A and 17B of Schedule 1 ofthe Arbitration Act 1996 and s 253 of theProperty Law Act 2007BETWEEN PRESTIGE MOTORS LIMITEDApplicantAND MY TRUSTEE COMPANY (NIKOLASAND PETRA) LIMITEDRespondentHearing: On the papersCounsel: J Long and G Morrison for the ApplicantD Purusram for the RespondentJudgment: 1 March 2022JUDGMENT (NO 3) OF GORDON JThis judgment is delivered by me on 1 March 2022 at 10 ampursuant to r 11.5 of the High Court Rules......................................................Registrar / Deputy RegistrarSolicitors: DK Law, AucklandVictorian Lawyers, Papakura, AucklandCounsel: J Long, AucklandG Morrison, Auckland[1] The respondent, My Trustee Company (Nikolas and Petra) Limited (MTC),has applied, by memoranda, for a transcript and/or the Judge's handwritten notes of acall of this matter in the Duty Judge list on 3 February 2021.[2] Stephen Penney, a director of MTC, appeared on behalf of MTC on thatoccasion. There is a dispute over what Mr Penney is alleged to have said to the Court,in particular whether he made any admissions in relation to the property of theapplicant Prestige Motors Limited (Prestige).[3] Prestige does not take a position on MTC's application but in a memorandumprovides assistance to the Court by referring to relevant authorities. Prestige alsorequests that if the Court were to order that a transcript (or other document) beprovided to MTC, that it be provided with a copy at the same time.Background[4] The proceeding has concluded in this Court. Two judgments were issued, on22 February 20211 (first judgment) and on 27 April 20212 (second judgment). Therewas also a costs judgment.3[5] The background is summarised in the second judgment which was given on anapplication by MTC for correction of the first judgment. I set out the relevantparagraphs below:[3] Prestige ran its automotive services and repair business from premisesat 14-16 Dryden Place, Mt Wellington (the premises) until it was locked outfrom the premises by the landlord, MTC. Prestige claimed MTC hadunlawfully purported to terminate its lease (the lease), evict it from thepremises, and deny it access to the premises on a number of occasions.Prestige claimed it had suffered considerable losses because of MTC's actionsas it was unable to conduct its business. As a consequence, Prestige appliedfor urgent interim measures and relief regarding the tenancy.[4] The lease contains an arbitration clause. Pending any arbitration,Prestige sought interim measures under arts 9, 17, 17A and 17B of Schedule 1of the Arbitration Act 1996. Prestige sought those measures to restore thestatus quo under the lease and to prevent MTC from taking action that waslikely to cause harm or prejudice to the arbitral proceedings.1 Prestige Motors Ltd v My Trustee Co (Nikolas and Petra) Ltd [2021] NZHC 237.2 Prestige Motors Ltd v My Trustee Co (Nikolas and Petra) Ltd [2021] NZHC 895.3 Prestige Motors Ltd v My Trustee Co (Nikolas and Petra) Ltd [2021] NZHC 849.[5] Article 9 of Schedule 1 of the Arbitration Act empowers the Court togrant interim measures before or during an arbitration. The Court is restrictedto the same powers as those of the arbitral tribunal (under arts 17A and 17B).The Court's jurisdiction is therefore auxiliary to and complements andfacilitates, the arbitral process. The ordinary jurisdiction for interiminjunctions does not apply.4[6] Prestige's case was that MTC's cancellation of the lease was unlawfulbecause the notice given by MTC did not comply with the code forcancellation of leases under the Property Law Act 2007 (PLA). Applying thecriteria in art 17B(1)(a)–(c), I accepted that Prestige had an arguable case thatthe PLA notice was not valid, and I considered that there was a reasonablepossibility that Prestige would succeed on the merits. Further applying thetest, I accepted that Prestige was likely to suffer harm that would not beadequately remedied by an award of damages if the application were notgranted and that the harm that would be suffered by Prestige if the applicationwere not granted substantially outweighed any harm that was likely to resultto MTC if I were to grant the measures sought.[7] Prestige therefore succeeded on its application.[8] The orders I made were as sought in Prestige's amended applicationof 4 February 2021 and included a direction that MTC (including its directors,agents and contractors and specifically Stephen Penney, one of two directorsof MTC):5[65](f) reinstate all property moved from or around the premises byMTC, including but not limited to signage, the emergency power generatorand televisions belonging to Prestige.[6] Also relevant for the purposes of this application are two further paragraphsfrom the second judgment:[16] In his affidavits, Uditha Pallewatte, the director of Prestige, said thatthe power generator belonging to Prestige had been removed from thepremises. Other property, including eight televisions packed in wooden palletboxes had also been removed. The application was called before the DutyJudge on 3 February 2021. Counsel appeared for Prestige and Mr Pallewatteand his family attended Court. Mr Penney and his co-director appeared forMTC with the leave of the Court. Prestige's position in its affidavit evidencewas that at the call on 3 February 2021, Mr Penney admitted to the Court thathe had removed property belonging to Prestige from the premises. Prestige'sposition is that Mr Penney specifically admitted he had removed Prestige'ssignage and power generator.[17] The Duty Judge made interim orders including that " nothing shallbe altered or removed from the premises pending further order of this Court".4 Safe Kids in Daily Supervision Ltd v McNeill [2012] 1 NZLR 714 (HC) at [18].5 Prestige Motors Ltd v My Trustee Co (Nikolas and Petra) Ltd, above n 2, at [65](f).[7] The second judgment was given on an application by MTC for "correction" of[65](f) set out above by deletion of the words "the emergency power generator andtelevisions" from that paragraph. I refused MTC's application. The Court has notreceived any advice to the effect that an appeal to the Court of Appeal has been filed.[8] However, the Court is advised that the matter proceeded to arbitration.The present application[9] On 10 February 2022 Mr Purusram, counsel for MTC, filed a memorandum inwhich it is stated:2. The dispute has been referred to arbitration. For the purposes ofarbitration, the Respondent seeks a copy of the transcript and/or theJudge's handwritten notes for the call-over held on 17 January 2021.3. There are disputes about what was stated by the parties during the call-over held on 17 January 2021 and so it is important that the transcriptand/or the Judge's handwritten notes for the call-over are released.4. The call-over was attended by the directors of the RespondentMr Stephen Charles Penney and Ms Nichola Jane Keast on behalf ofthe Respondent and this was prior to the Respondent beingrepresented by Counsel.[10] The memorandum also states that counsel was advised that Mr Penney hadsought a copy of the transcript via emails and by contact with the Court but that despitethose requests and follow up, the Court had provided no response to date. My inquirieshave not turned up any evidence of such requests either in 2021 or 2022. However, Ido not make any findings in that regard.[11] Counsel for Prestige responded by way of a memorandum dated 15 February2022. I have referred to Prestige's position in [3] above.[12] The Court then issued a minute of 17 February 2022 asking Mr Purusram to:[2] (a) Clarify the date of the event for which My Trustee Company seeks atranscript and/or the Judge's handwritten notes; and(b) Provide reasons as to why the Court should exercise its discretion togrant the application. In particular, the Court notes the advice in thememorandum on behalf of Prestige that the arbitral hearing to whichMy Trustee Company refers in its memorandum concluded on13 December 2021 and the parties are currently awaiting thearbitrator's award.[13] Mr Purusram filed a memorandum dated 17 February 2022 correcting the datefor the Duty Judge list and providing some reasons to support the application. Thememorandum contained the following:4. The matter has been referred to arbitration. Counsel is advised thatthe hearing has been concluded but the award has not yet been madeand the parties are still sorting our additional advance cost payment totheir respective lawyers' trust account. MTC has advised its intentionto get leave and file the transcript and notes as soon as they arereleased.[14] It was not clear from the above paragraph whether MTC's "intention" wasadvised to counsel for MTC or the arbitrator.[15] Mr Purusram filed a further memorandum of 21 February 2022 in which hesought to clarify paragraph 4 above. The memorandum states:4. In relation to the last sentence of paragraph 4 of the formermemorandum, counsel wishes to clarify that Mr Penney has advisedthat IF MTC receives the transcript, then MTC will make anapplication or such request to introduce the transcript into thearbitration.5. For avoidance of doubt, counsel has not obtained any direction norhas counsel received any written confirmation from the Arbitration orMTC that such an application is underway, or has been indicated tothe arbitrator or has been approved. Counsel understands from thestring of emails noted above [not annexed to memorandum] that thearbitration proceedings have been closed for new evidence (unlessthere are exceptional circumstances).[16] As to the relevance of the Judge's notes and transcript Mr Purusram submittedin his 17 February 2022 memorandum as follows:5. (i) During the course of the arbitration proceedings, theApplicant and its counsel has alleged that the director of theRespondent, namely, Mr Stephen Charles Penney had saidduring the call over on 3 February 2021 that he had taken theApplicant's property, namely the satellite dishes, thetelevisions and other property left outside the premises.Numerous affidavits being declarations on oath were filed.(ii) Counsel is advised that this is still a live and relevant matterfor the Arbitration and parties have filed their respectivestatements in evidence in relation to that issue; there areconflicting versions before the arbitration.(iii) MTC's position is that Mr Penney never made any suchstatement during the Hearing and nor did he take any of theApplicant's property as alleged by the Applicant and itscounsel.(iv) MTC's position is that the evidence in relation to thosematters will prove lying on oath and are relevant for thepurposes of disproving allegations and establishing badcharacter and lack of credibility.The law[17] Section 173(1) of the Senior Courts Act 2006 provides any person may haveaccess to court information of a senior court to the extent provided by, and inaccordance with, rules of the court. The relevant rules are the Senior Courts (Accessto Court Documents) Rules 2017 (the Rules). The relevant provisions of the Rules forpresent purposes are sub-rr 9(1), (2) and (5) which provide:(1) The parties to a civil proceeding and the parties' lawyers may, underthe supervision of the Registrar or a person appointed by theRegistrar,−(a) search and inspect the court file or any document relating to theproceeding, without paying a fee; and(b) copy any part of the court file or any document relating to theproceeding on paying the prescribed fee (if any).(2) The right under subclause (1) may be exercised at any time.(5) The general rights of the parties to civil proceedings, criminalproceedings and appeals, set out in subclauses (1) to (4), are subjectto the following qualifications:(a) a record of a court proceeding in electronic form that is in thecustody and control of the court may be copied only with thepermission of a Judge:(b) a Judge may direct that the court file or any document relating tothe appeal not be accessed by the parties or their lawyers withoutthe permission of a Judge.[18] In Zhang v Westpac New Zealand Ltd6 Associate Judge Paulson stated:[33] A request from a party is not sufficient to warrant production of atranscript. The matter remains within the discretion of the Judge. Aspreparing a transcript of anything but the shortest of hearings will involve asignificant use of court resources, good reason should be shown before anorder to prepare a transcript is made.[19] Previously in Siemer v Heron7 the Supreme Court said:[9] There are obvious resource implications if judges direct courtregistries to provide parties with transcripts of hearings of appeals andinterlocutory matters generally on demand by litigants. For that reason, judgesshould always first satisfy themselves that there is good reason in the interestsof justice for giving such directions. ...Discussion[20] Factors which count against the granting of the application are first, the latestage at which the application was made. There was no request when the proceedingswere live in this Court. Nor was a memorandum filed by counsel until after thearbitration hearing had concluded. Even if the Court accepts that Mr Penney madeinformal requests by email to the High Court Registry, the Court is not told when thoserequests were made. The first request referred to me was MTC's memorandum of10 February 2022.[21] Second, there is no guarantee that a transcript of the hearing will capture whatwas said by Mr Penney. It is not explained where Mr Penney was in the Courtroomwhen he addressed the Court, i.e. whether he was speaking from the public gallery orat counsel's table and speaking into a microphone.[22] On the other hand, the "hearing" being a call in the Duty Judge list would havebeen relatively short. The typing of a transcript will not involve a significant use ofCourt resources. Further MTC says that although the arbitration hearing hasconcluded there will be an application made to the arbitrator to adduce this furtherevidence. Although this Court is not in a position to assess whether the late evidence6 Zhang v Westpac New Zealand Ltd [2019] NZHC 27977 Siemer v Heron (Recusal) [2011] NZSC 116, [2012] 1 NZLR 293.would be admitted, it is said it goes to disproving allegations Prestige makes aboutMr Penney's conduct and what he is alleged to have admitted.[23] The matter is finely balanced but in the end I have determined that the balancetips in favour of making an order as sought by MTC. The order will apply only to acopy of the electronic record, not the Judge's notes.Result and order[24] I make an order that the electronic recording of the call of this proceedingbefore the Duty Judge on 3 February 2021 be transcribed and a copy of the transcriptprovided to both parties.______________________________Gordon J