SWISHER HYGIENE FRANCHISE CORPORATION V HI-GENE LTD HC AK CIV-2009-404-001573

SWISHER HYGIENE FRANCHISE CORPORATION V HI-GENE LTD HC AK CIV-2009-404-001573 29 March 2010IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV-2009-404-001573BETWEEN SWISHER HYGIENE FRANCHISE CORPORATION Plaintiff AND HI-GENE LIMITED Defendant Hearing: 29 March 2010 Appearances: A C H Clemow and N P Tetzlaff for the Plaintiff W G C Templeton for the Defendant Judgment: 29 March 2010ORAL JUDGMENT OF DUFFY J [Re Application for Leave to Appeal to the Court of Appeal]Counsel: W G C Templeton P O Box 5444 Wellesley Street Auckland 1141 for the Defendant Solicitors: Gaze Burt P O Box 91345 Victoria Street West Auckland 1142 for the Plaintiff Foley and Hughes P O Box 6829 Wellesley Street Auckland 1141 for the Defendant[1] On 2 December 2009, I issued a judgment finding that Hi-Gene Limited (Hi- Gene) had failed to make out the grounds of its application that an arbitral award against it should not be recognised and enforced. I also found that Hi-Gene had failed to make out the grounds of its opposition to Swisher Hygiene Franchise Corporation's (Swisher) application to this Court to recognise and enforce the arbitral award as a judgment. [2] On 21 December 2009, Hi-Gene filed a notice of application for leave to appeal to the Court of Appeal under the Arbitration Act 1996 in respect of my judgment. Since doing so, Hi-Gene has now come to doubt the basis for seeking leave to appeal to the Court of Appeal. It now considers that the issue more appropriately falls within Schedule 1 of the Arbitration Act, which it says entitles it as of right to appeal to the Court of Appeal. Its appeal under Schedule 1 is out of time, but it has sought to cure that problem by seeking leave from the Court of Appeal to appeal out of time. That application is yet to be determined. [3] In the meantime, Hi-Gene's application for leave to appeal to the Court of Appeal has come before me. Hi-Gene has sought to have it adjourned, out of an abundance of caution, just in case its view that it is entitled to appeal as of right, because the appeal comes under Schedule 1 of the Act, is incorrect. [4] Swisher opposes any adjournment, and seeks to have the application for leave to appeal dismissed. [5] It seems to me to be wrong for this matter to be adjourned and, therefore, to be in limbo until such time as the Court of Appeal reaches a view on Hi-Gene's application for leave to appeal under Schedule 1 out of time. I consider that Hi-Gene needs to reach a firm view on under what schedule its appellate rights fall. It has chosen to pursue an appeal under Schedule 1, on the ground it is entitled to appeal as of right. I consider there is no basis, therefore, for the leave appeal, brought under Schedule 2, to be placed in limbo. Indeed, I consider it would be an abuse of process for that to occur. Accordingly, I consider that the appropriate response to Hi-Gene's actions is for this Court to dismiss Hi-Gene's application for leave to appeal to the Court of Appeal.[6] This is a matter in which Swisher has sought costs, following the dismissal of the leave application. Hi-Gene opposes costs. I will deal with that in a separate judgment. Duffy J