NAVARATNAM v HG METAL MANUFACTURING LTD [2022] NZCA 619

NAVARATNAM v HG METAL MANUFACTURING LTD [2022] NZCA 619 [12 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA532/2022[2022] NZCA 619BETWEEN VASHIHARAN NAVARATNAMAppellantAND HG METAL MANUFACTURINGLIMITEDRespondentCourt: Brown and Gilbert JJCounsel: Appellant in personT B Fitzgerald and B J Dominikovich for RespondentJudgment:(On the papers)12 December 2022 at 9.30 amJUDGMENT OF THE COURTA The respondent's application for review of the Deputy Registrar's decision isdeclined.B We make no order for costs.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)[1] Mr Navaratnam was adjudicated bankrupt on 30 August 2022 onthe application of HG Metal Manufacturing Ltd (HG Metal).1 He wishes to appealagainst that decision. However, rather than lodging an appeal upon receipt ofthe judgment, he applied to the High Court for a review under s 414 of1 HG Metal Manufacturing Ltd v Navaratnam [2022] NZHC 2183 [High Court judgment].the Insolvency Act 2006 or, alternatively, for recall of the judgment under r 11.9 ofthe High Court Rules 2016. That application, which he filed promptly on5 September 2022, was dismissed on 4 October 2022.2 Mr Navaratnam filed a noticeof appeal in this Court the following day, five working days out of time.[2] The Deputy Registrar granted an extension of time to appeal in reliance onthe power conferred under r 5A(1)(c)(ii) of the Court of Appeal (Civil) Rules 2005(the Rules). This rule relevantly reads:5A Registrar's powers(1) The Registrar may, unless otherwise directed by a Judge,—(c) extend the time for complying with any rule, direction, ororder of the Court—(i) by consent; or(ii) by up to 5 working days, despite the absence ofconsent.(2) The Registrar's power under subclause (1)(c)—(b) is in addition to any express power to extend time under theserules.[3] HG Metal subsequently applied informally for a review and an order revokingthe Deputy Registrar's decision. An issue arose as to whether the Registrar's powersunder r 5A(1)(c) permit the grant of an extension of time to appeal. HG Metalcontends that the Deputy Registrar had no jurisdiction under r 5A to grant an extensionof time to appeal. Mr Navaratnam supports the Deputy Registrar's decision, but he isnot legally represented, and we have therefore not had the benefit of legal submissionsfrom a contradictor.2 HG Metal Manufacturing Ltd v Navaratnam [2022] NZHC 2546.[4] In any event, we have concluded, in agreement with the Deputy Registrar, thatthe short extension of time required for this appeal should be granted and it is thereforenot necessary for us to address the scope of the Registrar's powers under r 5A.[5] The approach to applications for an extension of time to appeal was settled bythe Supreme Court in Almond v Read.3 Relevant factors are likely to include the lengthof the delay, the reason for it, the conduct of the parties, particularly that ofthe applicant, any prejudice caused, and the significance of the issues raised bythe proposed appeal.4 The merits of the proposed appeal are generally not relevant incases where the delay is insignificant and causes no prejudice. The jurisdiction is notto be exercised as a way of dismissing apparently weak appeals summarily.However, where an appeal is clearly hopeless, an extension of time will not begranted.5 The ultimate question is what the interests of justice require.6[6] Here, the delay in appealing was short and caused no prejudice. The judgmentagainst which Mr Navaratnam wishes to appeal — an order adjudicating him bankrupt— is plainly significant for both parties. An extension of time would normally begranted so as not to deprive Mr Navaratnam of his right to appeal.[7] HG Metal nevertheless opposes an extension of time being granted fortwo reasons. First, Mr Navaratnam has failed to comply with timetable directions andprocedural rules in the past, attracting criticism from the High Court and this Court.Secondly, HG Metal contends that the appeal is manifestly without merit.[8] It is unnecessary to traverse the tortuous background in any detail because ithas been rehearsed in numerous other decisions, including of this Court.7The following brief summary will suffice for present purposes.3 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.4 At [38].5 At [39].6 At [38].7 HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 1920; HG Metal Manufacturing Ltd vNavaratnam [2021] NZHC 2497; HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC2701; Navaratnam v HG Metal Manufacturing Ltd [2021] NZCA 704 [First Court of Appealjudgment]; High Court judgment, above n 1; and Navaratnam v HG Metal Manufacturing Ltd[2022] NZCA 425 [Second Court of Appeal judgment].[9] In 2020, HG Metal obtained an award from a Singaporean arbitrator forsubstantial sums due by Mr Navaratnam and his wife under a guarantee. HG Metalexperienced significant difficulty in seeking recognition and enforcement of thataward as a judgment in New Zealand. In a judgment delivered on 20 December 2021,this Court observed that Mr Navaratnam had "done everything possible to delayjudgment and frustrate [HG Metal's] attempts to enforce the arbitral award".8 In alater judgment, delivered on 8 September 2022, this Court struck out two appealsbrought by Mr and Mrs Navaratnam against two decisions of the High Court enteringjudgment on the arbitral award — the first by Woolford J on 22 October 2020 againstMrs Navaratnam and the second by Katz J on 28 July 2021 against Mr Navaratnam.9In striking out these appeals, this Court made the following observations:[46] The procedural history we have outlined is far from complete in termsof Mr and Mrs Navaratnam's failure to comply with High Court Rules andspecific directions of this Court. It is evident from the matters that we havespecifically addressed that there have been repeated failures to comply.Moreover, we are satisfied beyond doubt that these omissions have beenwilful, and are a deliberate attempt to delay and forestall progress byHG Metal towards resolving its original application for recognition andenforcement.[48] Mr and Mrs Navaratnam have deliberately attempted to delayprogress of this appeal. They have failed to comply with numerous directionsof the Court, even in the face of express warnings from the Court aboutthe need to comply. There is no discernible merit in the appeal that wouldjustify further latitude. The point has been reached where HG Metal's rightsshould be recognised. We are satisfied that this is an appropriate case in whichthe power to strike out the appeal for continuing default in compliance withcourt rules and directions is appropriate.[10] The consequences of Mr Navaratnam's delay and procedural non-compliancein the context of the proceedings seeking recognition and enforcement of the arbitralaward as a judgment have already been visited upon him, including by striking outhis appeals and the making of various costs awards against him. We are not persuadedthat this history of non-compliance in the related proceedings justifies depriving himof his right to appeal against the order adjudicating him bankrupt in the presentproceeding. Nor are we persuaded that this is one of those rare cases where the appeal8 First Court of Appeal judgment, above n 7, at [13].9 Second Court of Appeal judgment, above n 7.is so obviously hopeless on its face that an extension of time should not be granted.We consider that the interests of justice favour the grant of the very short extension oftime required to enable the appeal to be brought.[11] However, Mr Navaratnam must progress the appeal diligently and withoutany delay. Any failure on his part to prosecute the appeal or to comply with proceduralrules and directions is likely to be met by an order striking out the appeal. Given thebackground, he should not expect any latitude to be granted.Result[12] The respondent's application for review of the Deputy Registrar's decision isdeclined.[13] We make no order for costs.Solicitors:Bell Gully, Auckland for Respondent