Navaratnam v HG Metal Manufacturing Limited [2022] NZCA 425 (8 September 2022)

Last Updated: 12 September 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA692/2020 [2022] NZCA 425

	BETWEEN	VASHIHARAN NAVARATNAM First Appellant SHERINE NAVARATNAM Second Appellant
	AND	HG METAL MANUFACTURING LIMITED Respondent

CA152/2022
	BETWEEN	VASHIHARAN NAVARATNAM First Appellant SHERINE NAVARATNAM Second Appellant
	AND	HIGH COURT AT AUCKLAND First Respondent HG METAL MANUFACTURING LIMITED Second Respondent

Hearing:	18 July 2022
Court:	Courtney, Thomas and Peters JJ
Counsel:	First Appellant in Person for CA692/2020 and CA152/2022 Second Appellant in Person in CA692/2020 and CA152/2022 T B Fitzgerald and B J Dominikovich for Respondent in CA692/2020 and Second Respondent in CA152/2022 No appearance for First Respondent in CA152/2022
Judgment:	8 September 2022 at 11 am

JUDGMENT OF THE COURT

1. The appeal in CA692/2020 is struck out.
2. The appeal in CA152/2022 is struck out.

100. Costs are reserved.

____________________________________________________________________

REASONS OF THE COURT

(Given by Courtney J)

Introduction

• [1] In September 2014 Mr and Mrs Navaratnam guaranteed the payment of money owed by Gayathri Steels Pte Ltd to HG Metal Manufacturing Ltd (HG Metal). They failed to pay the outstanding amounts. A Singaporean arbitrator issued an award (Award) dated 23 April 2020 finding that Mr and Mrs Navaratnam were jointly and severally liable to HG Metal for SGD 404,736.10 and USD 1,230,187.73, together with interest and the fees and expenses of the arbitration.
• [2] Mr and Mrs Navaratnam did not meet the Award. By October 2020 they were living in New Zealand. HG Metal applied pursuant to art 35 of sch 1 of the Arbitration Act 1996 for recognition and enforcement of the Award. That application triggered a lengthy procedural battle between HG Metal and Mr and Mrs Navaratnam that has culminated in the present applications by HG Metal to strike out two appeals brought by Mr and Mrs Navaratnam.
• [3] In October 2020, Woolford J entered judgment against Mrs Navaratnam by default.^[1] Mr and Mrs Navaratnam both appealed that judgment (Mr Navaratnam on the ground that the sealed judgment created a liability for him as well). HG Metal applies to strike out the appeal on the ground that Mr and Mrs Navaratnam have failed to comply with court directions.^[2]
• [4] In July 2021, following a defended hearing, Katz J entered judgment against Mr Navaratnam.^[3] Having been refused an extension of time to appeal,^[4] Mr Navaratnam applied for judicial review of Katz J’s decision. Jagose J struck out the judicial review proceeding in March 2022.^[5] Mr Navaratnam has appealed Jagose J’s decision. HG Metal applies to strike out the appeal on the ground that it is an abuse of process.^[6]
• [5] In both appeals Mr and Mrs Navaratnam raise the same substantive complaint. They say that HG Metal has not satisfied the statutory requirements for recognition and enforcement of the Award under the Arbitration Act because it has not provided a properly authenticated copy of the Award itself. They say that, as a result, no obligation has arisen for them to take any steps in the proceeding.

Jurisdiction

• [6] Rule 44A(1) confers the power to strike out or stay an appeal on specified grounds. Relevantly, these include that the appellant is in continuing default in complying with any of the rules and that the appeal is an abuse of the process of the Court.^[7] Depriving an appellant of the right to have their appeal determined on its merits is a step that is only taken with great caution. However, Fisher J’s observations in Smith v Antons Trawling Co Ltd are apt:^[8]

[3] ... These days we try to decide cases on their merits if we possibly can. Cases should not lightly be dismissed on purely technical or procedural grounds. On the other hand there comes a point at which the victim of procedural default is entitled to justice too. ...

• [7] In cases of persistent, unjustified or wilful non-compliance with procedural rules, striking out an appeal may be warranted.
• [8] The abuse of process ground generally captures all instances of misuse of the court’s processes not falling within other specific grounds provided in r 44A. It includes proceedings brought with an improper motive and attempts to relitigate matters that have already been determined.^[9]

Recognition and enforcement of an arbitral award

• [9] The purposes of the Arbitration Act include the encouragement of arbitration to resolve commercial disputes, the facilitation of the recognition and enforcement of arbitral awards and to give effect to New Zealand’s obligations under the Convention on the Execution of Foreign Arbitral Awards (1927) and the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (1958).^[10] There is, accordingly, a general presumption in favour of the enforcement of foreign arbitral awards. This is reflected in the limited requirements to support an application for recognition and enforcement under art 35 of sch 1 of the Act. An applicant is required only to supply the duly authenticated original award or a duly certified copy, the original arbitration agreement or a duly certified copy and, if those documents are not in English, a duly certified translation.
• [10] The grounds on which an application for recognition and enforcement can be resisted are limited to those specified in art 36. Although Mr and Mrs Navaratnam initially sought to rely on some of these grounds, their main complaint was, and continues to be, that HG Metal failed to supply the duly authenticated Award as required by art 35(2)(a).

Application to strike out appeal against decision of Jagose J (CA152/2022)

• [11] Although this appeal post-dates the appeal in CA692/2020, we deal with it first because it provides a convenient means of addressing Mr and Mrs Navaratnam’s complaint regarding the authentication of the Award.

Katz J’s decision

• [12] Mr Navaratnam raised a number of grounds in opposition to HG Metal’s application for recognition and enforcement. The first of these was a group of procedural complaints, including that HG Metal was not the party that filed the affidavit that proved the matters required by art 35(2) and that the Award had not been properly authenticated or certified. Katz J found that none of these complaints had any substance.^[11]
• [13] The affidavit filed in support of HG Metal’s application was sworn by its Singaporean solicitor, Mr Chow Jie Ying. This complied with art 35(2) — there is no requirement that the supporting affidavit be sworn by a director or employee of HG Metal. Mr Chow annexed to his affidavit a duly certified copy of the Award. Katz J was satisfied that the Award had been properly certified:

[24] The Award has clearly been properly certified. It is sealed on the first page where it says, “Registered in SIAC Registry of Awards as: Award No. 059 of 2020 on 24 April 2020”. Mr Chow has provided expert evidence that this is all that is required as a matter of Singaporean law.

• [14] The Registrar was directed to enter the Award as a judgment against Mr Navaratnam.^[12]

Mr Navaratnam is refused an extension of time to appeal

• [15] Mr Navaratnam filed his notice of appeal against Katz J’s decision slightly outside the prescribed time. He applied for an extension of time. In considering the application this Court noted that some of his proposed grounds were plainly not tenable.^[13] Otherwise two broad grounds of appeal were proposed. One of these was that HG Metal had failed to discharge the onus required under art 35(2) to provide proper authentication of the Award and the arbitration agreement.^[14] In considering the merits of the proposed appeal this Court said:

[22] ... Mr Navaratnam has not identified any specific error by the Judge in finding that the award was properly certified. Given that this ground does not appear in the proposed notice of appeal and that Mr Navaratnam’s affidavit contains nothing to support his assertion regarding authentication we cannot see the basis on which Mr Navaratnam might impugn the Judge’s finding.

• [16] This Court had regard to the lack of any apparent merit in the proposed appeal and Mr Navaratnam’s unsatisfactory conduct in the proceeding generally, including numerous instances of non-compliance with timetable directions in the face of warnings from the Court. It concluded that, although the delay in filing the notice of appeal was short, the interests of justice did not require an extension of time to be granted.^[15]

The judicial review proceedings and Jagose J’s decision

• [17] The decision declining Mr Navaratnam’s application for an extension of time was delivered on 20 December 2021. In early 2022 Mr Navaratnam filed an application for judicial review of Katz J’s decision. In the course of the hearing before us Mr Navaratnam advised that he had brought the judicial review proceedings as a result of having been refused an extension of time to appeal the judgment.
• [18] The Registrar of the High Court referred the judicial review proceeding to Jagose J under r 5.35A of the High Court Rules 2016 which permits a Registrar to refer proceedings to a Judge if they believe, on the face of the proceeding, that the proceeding is plainly an abuse of the process of the court. Rule 5.35B empowers a Judge, on their own initiative, to make an order or give directions to ensure the proceeding is disposed of or proceeds in a way that complies with the High Court Rules. This includes an order that the proceeding be struck out. Jagose J said:^[16]

[5] Even at judicial review’s widest conception, decisions of this Court and its judges — including in all the senior courts, distinctly from inferior courts of limited jurisdiction — are not susceptible to it, as contrary to principles of finality and legality. Save for this Court’s inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice, any dissatisfaction with its decisions can only be taken up on appeal, where available.

...

[6] In very significant part, looking past its judicial review veneer, this proceeding embodies the applicants’ dissatisfaction with the substance of this Court’s impugned decisions. No exceptional circumstance is evident. As such, I am satisfied this proceeding plainly is an abuse of the Court’s process. An abuse is “improper use of [the court’s] machinery”; use of that process “for a purpose or in a way significantly different from its ordinary and proper use”. Here, as I have explained, that is the proceeding’s improper attempt to obtain judicial review of this Court’s decisions. The applicants can have no reasonably arguable case to claim it.

• [19] The Judge accordingly struck out the claim and dismissed the proceeding.

Application to strike out appeal against Jagose J’s decision

• [20] Mr Navaratnam filed a notice of appeal against Jagose J’s decision on 25 March 2022.^[17] Essentially, Mr Navaratnam maintains that judicial review is available as a means of challenging Katz J’s decision. The substantive ground he wishes to raise is that HG Metal failed to satisfy the requirement of art 35(2) to provide a duly authenticated or duly certified copy of the Award and arbitration agreement. He maintains that service of HG Metal’s original application for enforcement was therefore invalid.
• [21] Mr Fitzgerald, for HG Metal, submitted that the appeal against Jagose J’s decision effectively seeks to relitigate matters that had already been determined and that, in any event, there is no merit to the arguments: the Award was properly certified; there was no breach of natural justice in relation to the arbitration; the arbitration agreement was effective; and there is no substance in the complaint that HG Metal’s solicitors had sworn evidence on its behalf or that service of HG Metal’s application for enforcement was invalid. Rather, the judicial review appeal was brought with an objective of delaying enforcement of the Award.
• [22] In this regard, Mr Fitzgerald argued that the judicial review proceeding ought to be viewed against the proceedings brought by HG Metal in early 2022 seeking to have Mr Navaratnam adjudicated bankrupt. The first call of that application was 3 March 2022. Mr Navaratnam relied on the fact of the judicial review proceedings to oppose the bankruptcy application. He was directed to file affidavits in support of his opposition to the bankruptcy application by 25 March 2022, which he failed to do. Instead, on 25 March 2022, he applied for a “[s]tay of proceeding and or stay of enforcement proceedings or execution enforcement proceedings” (filed in CA692/2020 but seeking a stay in respect of both proceedings). The Registry declined to accept the stay application, directing Mr Navaratnam to file in the High Court. Instead, he applied, unsuccessfully, to review the Registrar’s decision.^[18]
• [23] In these circumstances, Mr Fitzgerald submitted, the appeal against Jagose J’s decision had to be regarded as an abuse of process and was therefore amenable to being struck out.
• [24] Mr Navaratnam filed a memorandum dated 16 June 2022 in respect of both appeals. The focus is very much on his assertion that the Award and the arbitration agreement were not properly authenticated in accordance with art 35(2). Other grounds simply reflect consequences of that argument — relevantly that the lack of proper authentication meant Mr Navaratnam’s statutory appeal rights had been prematurely declined because of his assertion of a right to have the presumptive validity of the Award determined.

Decision

• [25] The Judge’s statement of the law — that decisions of the High Court and its Judges are not susceptible to judicial review — is unquestionably correct.^[19] Katz J’s decision is not amenable to judicial review. The decision of a High Court Judge must stand, subject only to being set aside on appeal or pursuant to the Court’s inherent power to reopen its decisions when required by the interests of justice.^[20] Mr Navaratnam had a right of appeal, which he failed to exercise within the requisite timeframe. The principle of finality, which exists for the benefit of all litigants and to ensure the efficient use of scarce judicial resources, dictates that that is an end of the matter.
• [26] Mr Navaratnam’s efforts to circumvent the principle of finality through the judicial review process and, in doing so, to relitigate an issue already determined in the High Court is an abuse of process. The appeal ought not to be permitted to proceed further. We accept HG Metal’s submission that it should be struck out.

Application to strike out appeal against Woolford J’s decision (CA692/2020)

• [27] HG Metal’s application for recognition and enforcement came on for a first call before Woolford J on 22 October 2020. Mr Navaratnam appeared, but Mrs Navaratnam did not. The Judge dealt first with Mr Navaratnam’s situation and set a timetable for steps towards a defended hearing.^[21]
• [28] The Judge then turned to Mrs Navaratnam’s position, noting that she had taken no steps within the time specified for doing so. He directed the Registrar to enter the award as a judgment against Mrs Navaratnam as soon as practicable in terms of r 26.26(1) of the High Court Rules.^[22]
• [29] HG Metal sealed the order on 22 October 2020. The terms of the order, as sealed, included:
  2. The Award requires the second defendant (jointly and severally with the first defendant) to pay the plaintiff:

  (a) The sum of SGD 404,736.10;

  (b) The sum of USD 1,230,187.73;

...

• [30] One of Mr Navaratnam’s complaints (albeit not raised at the time) is that the order, as sealed, did not accurately reflect Woolford J’s decision; the Judge had entered judgment solely against Mrs Navaratnam whereas the sealed order recorded a liability by Mr Navaratnam jointly and severally with his wife.
• [31] Mr and Mrs Navaratnam both appealed Woolford J’s decision. The notice of appeal was filed slightly out of time, on 26 November 2020 together with an application for extension of time.^[23] In March 2021 Mr and Mrs Navaratnam were granted an extension of time to file the notice of appeal. HG Metal itself applied for a hearing date. However, there was no progress towards a hearing. Mr and Mrs Navaratnam obtained a number of extensions in respect of payment of security for costs and filing the case on appeal. On 1 November 2021, Goddard J granted one last extension, requiring compliance by 10 November 2021, failing which the appeal would be deemed to be abandoned. That direction was not complied with.
• [32] In December 2021 the Court indicated that no further extensions of time would be granted. It notified Mr and Mrs Navaratnam that it intended, on its own motion, to consider striking out their appeal.
• [33] Security for costs was paid on 19 January 2022.
• [34] In a decision delivered on 13 May 2022, the Court concluded “by the finest of margins” that the interests of justice required that the appeal not be struck out but, instead, determined promptly on its merits.^[24] The Court observed that the Navaratnams had “repeatedly failed to comply with the requirements of the Rules and timetable directions ... ”.^[25] It accepted HG Metal’s submission that the delays appeared to have been deliberate. Referring to the Court’s judgment declining an extension of time in Mr Navaratnam’s related appeal against Katz J’s decision, the Court observed that the merits of the appeal did not seem strong. Nevertheless, the issues in the two appeals were not identical and Mr Navaratnam’s unsatisfactory conduct in the High Court and in his appeal ought not to be attributed to Mrs Navaratnam.^[26]
• [35] The Court added:

[20] The appeal relates to a judgment against Mrs Navaratnam. Mr Navaratnam is a party, and is entitled to be heard. But he is not entitled to represent Mrs Navaratnam, and in light of the concerns previously expressed about his conduct of related proceedings it would not be appropriate to grant him leave to represent his wife in connection with the future conduct of this appeal or at the hearing. Mrs Navaratnam’s submissions, and any other documents filed on her behalf, must be signed by her personally or by counsel acting for her. At the hearing of the appeal Mrs Navaratnam may be represented by counsel, or may appear in person. Mr Navaratnam may not appear for her. If she does not appear by counsel or in person at the hearing of the appeal, she will be treated as unrepresented.

[21] Mr Navaratnam can of course continue to represent himself. But his role in this appeal against a judgment against Mrs Navaratnam is very much a secondary one. ...

• [36] The Court made timetable directions including the filing of written synopses of argument by 27 May 2022 and the payment of costs of $2,390 to HG Metal by the same date. It emphasised that there were to be no further delays in Mr and Mrs Navaratnam complying with the timetable directions.^[27]
• [37] The Navaratnams did not comply with the timetable directions. Mr Navaratnam filed the memorandum already referred to on 16 June 2022 (without serving it on HG Metal). He filed submissions on 14 July 2022. Mrs Navaratnam filed a memorandum dated 18 June 2022 on the morning of the hearing of HG Metal’s application. As at the date of the hearing the costs had not been paid.

Difficulties at the hearing of the strike out application

• [38] The week before the appeal hearing Mr and Mrs Navaratnam filed an application to review the timetable directions. We are satisfied that this application was filed in an effort to forestall the hearing of HG Metal’s strike-out applications. The Court declined to deal with the application prior to the scheduled hearing date.
• [39] The day before the hearing date Mr Navaratnam requested that he and Mrs Navaratnam be permitted to appear by VMR. On further inquiry it appeared that there were childcare problems. The Court indicated that it would permit either Mr or Mrs Navaratnam to appear by VMR so that the other could attend Court. On the morning of the hearing there were considerable difficulties linking Mrs Navaratnam into the hearing. Ultimately, it was not possible to do so.
• [40] Mr Navaratnam handed up the memorandum by Mrs Navaratnam. Unable to successfully join Mrs Navaratnam to the Court hearing, we eventually telephoned her from the Court and asked her to confirm that the memorandum was hers and had been signed by her, which she did.

HG Metal’s application to strike out

• [41] HG Metal relies on Mr and Mrs Navaratnam’s failure to comply with the directions made by the Court in relation to this appeal. The application is made in the context of Mr Navaratnam’s conduct in the underlying litigation. HG Metal argues that the failure by both Mr and Mrs Navaratnam to comply with directions by the Court is wilful.
• [42] Mr and Mrs Navaratnam take the position that HG Metal failed to comply with the requirement in art 35(2) to supply an authenticated or duly certified award and arbitration agreement and they are under no obligation to respond to its application for recognition and enforcement until after it has established the validity of the Award. In the memorandum of 11 June 2022, under the heading “The time tabling orders and cost award issued on [2022] NZCA 185”, Mr Navaratnam stated that:

...

(b) Hg Metal has not proven the presumptive validity of the award as required under Article 35(2) and according to the relief the Navaratnam’s (sic) sought, it was a prerequisite to have [Mrs Navaratnam’s] grounds challenge to be heard under Article 36 and that requirement has not been met.

(c) The non-compliance is also dispositive of the issue of service on [Mrs Navaratnam] because in order for service to be effective, there ought to be a valid award and arbitration agreement filed which proves matters under Article 35(2). There is no such filing and any argument otherwise is displaced by the evidence.

(d) Accordingly neither Navaratnam’s (sic) have an obligation to respond under 26.27 of the [High Court Rules] requesting review of the award under article 36(1)(a).

...

(f) [Mr Navaratnam] will not allow [Mrs Navaratnam] to respond as Hg Metal has not satisfied the requirements under Article 35(2) and by way of that requirement the terms of the Arbitration Agreement they used to obtain the Award. Satisfying the requirements in Article 35(2) is a prerequisite and a right that is afforded to her and if and when Hg Metal decides to submit the relevant documents and [Mrs Navaratnam] is validly served [in] accordance to the laws applicable to her, a response from her will be rightfully forthcoming. Until such time that happens [Mr Navaratnam] is doing what the Judiciary ought to do – protect her rights under the Arbitration Act 1996 and therefore he should not be penalised for his actions.

(g) For the above reasons, the Navaratnam’s (sic) have not complied with the time tabling directions and the directions ought to be deferred until determination is made under CA152/2022.

30. The Cost Award. The circumstances particularized below shows that the Navaratnam’s (sic) did not progress the appeal on CA692/2020, as of right and penalizing them with a cost order does not do justice. It is reward for the plaintiff for not complying with its obligations and therefore the Navaratnam request the cost order to be recalled.

• [43] Mrs Navaratnam did not wish to make any submissions beyond the contents of her memorandum dated 18 July 2022. In that memorandum she stated:

... [Mrs Navaratnam’s] position is that she is of the view that she has no obligation to respond to an award and arbitration agreement that does not comply to Article 35(2) requirements ...

• [44] We infer that Mrs Navaratnam’s position is the same as that taken by Mr Navaratnam — that HG Metal has not satisfied the requirements of art 35(2) and, as a result, she has no obligation to respond to its application.
• [45] Mr Navaratnam also drew attention to his complaint that the order, as sealed, rendered him jointly and severally liable, even though Woolford J only entered judgment against Mrs Navaratnam. Mr Fitzgerald pointed out that the sealed order reflected the terms of the Award but accepted that it recorded the judgment as having been entered against both Mr and Mrs Navaratnam, even though Woolford J had only entered judgment against Mrs Navaratnam.

Decision

• [46] The procedural history we have outlined is far from complete in terms of Mr and Mrs Navaratnam’s failure to comply with High Court Rules and specific directions of this Court. It is evident from the matters that we have specifically addressed that there have been repeated failures to comply. Moreover, we are satisfied beyond doubt that these omissions have been wilful, and are a deliberate attempt to delay and forestall progress by HG Metal towards resolving its original application for recognition and enforcement.
• [47] Mrs Navaratnam chose not to take any steps in opposition to HG Metal’s application. She and Mr Navaratnam now advance an argument that is not tenable. On its face, HG Metal’s application satisfied art 35(2) and that issue has been the subject of a specific finding by Katz J which (as we have explained) is not able to be challenged. Nor can Mr Navaratnam’s complaint regarding the terms of the sealed order, while valid, assist him in the question of whether the appeal should be struck out. It could only have had a practical effect if HG Metal had attempted to enforce that judgment against Mr Navaratnam, in which case he would have a defence to such action. But HG Metal did not, and will not, take that course because it has the judgment entered against Mr Navaratnam by Katz J, which it has been attempting to enforce.
• [48] Mr and Mrs Navaratnam have deliberately attempted to delay progress of this appeal. They have failed to comply with numerous directions of the Court, even in the face of express warnings from the Court about the need to comply. There is no discernible merit in the appeal that would justify further latitude. The point has been reached where HG Metal’s rights should be recognised. We are satisfied that this is an appropriate case in which the power to strike out the appeal for continuing default in compliance with court rules and directions is appropriate.

Result

• [49] The appeal in CA692/2020 is struck out.
• [50] The appeal in CA152/2022 is struck out.
• [51] At the conclusion of the hearing, HG Metal indicated that it was seeking indemnity costs in respect of the strike-out applications on the basis that the guarantee contains an indemnity clause under which Mr and Mrs Navaratnam are required to indemnify HG Metal in full against the cost of enforcing the guarantee, including solicitor/client legal fees. However, there were no details provided of the costs incurred.
• [52] Mr Navaratnam’s liability for indemnity costs under the guarantee was the subject of an express finding by Katz J.^[28] As a result, his liability for indemnity costs in this Court must be regarded as having been determined. Katz J was not however concerned with Mrs Navaratnam’s liability. Although it would seem clear that Mrs Navaratnam is also liable for indemnity costs she ought to be given the opportunity to address the matter.
• [53] We direct that:

(a) HG Metal is to file a memorandum as to costs by 23 September 2022.

(b) Mr and Mrs Navaratnam may respond by filing a memorandum in reply by 30 October 2022.

• [54] There will be no extensions of time for filing of these memoranda. The issue of costs will be determined on the papers.

Solicitors:
Bell Gully, Auckland for HG Metal Manufacturing Limited

---

^[1] HG Metal Manufacturing Ltd v Navaratnam HC Auckland CIV-2020-404-001955, 22 October 2020 (Minute of Woolford J).

^[2] Court of Appeal (Civil) Rules 2005, r 44A(1)(a).

^[3] HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 1920 [Judgment of Katz J].

^[4] Navaratnam v HG Metal Manufacturing Ltd [2021] NZCA 704 [Court of Appeal extension of time judgment].

^[5] Navaratnam v High Court of Auckland [2022] NZHC 371 [Judgment of Jagose J].

^[6] Court of Appeal (Civil) Rules, r 44A(1)(c).

^[7] Rule 44A(1)(a) and (c).

^[8] Smith v Antons Trawling Company Ltd HC Auckland CL 40/98, 24 March 2000.

^[9] Commissioner of Inland Revenue v Chesterfields Preschools Ltd [2013] NZCA 53, [2013] 2 NZLR 679 at [89]; and Collier v Butterworths of New Zealand Ltd (1997) 11 PRNZ 581 (HC).

^[10] Arbitration Act 1996, s 5.

^[11] Judgment of Katz J, above n 3, at [22].

^[12] At [49].

^[13] Court of Appeal extension of time judgment, above n 4, at [15].

^[14] The other broad ground related to the way the Judge had dealt with Mr Navaratnam’s argument about the underlying guarantee, which he asserted was precluded as a source of liability by related litigation between the parties.

^[15] At [32].

^[16] Judgment of Jagose J, above n 5 (footnotes omitted).

^[17] The notice of appeal also purported to appeal the decisions of Woolford J entering judgment against Mrs Navaratnam and Katz J entering judgment against Mr Navaratnam, neither of which were amenable to appeal as a result of the procedural history just outlined.

^[18] Navaratnam v High Court of New Zealand at Auckland [2022] NZCA 156.

^[19] Young v Police [2007] NZCA 339 at [25]; Nicholls v Registrar of the Court of Appeal [1998] 2 NZLR 385 (CA) at 414, 435 and 455; Bulmer v Attorney-General (1998) 12 PRNZ 316 (CA) at 318; and Re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374 (HL) at 384, 386 and 392.

^[20] Ben Nevis Forestry Ventures Ltd v Commissioner of Inland Revenue [2014] NZCA 350 at [20]–[22]; and R v Smith [2002] NZCA 335; [2003] 3 NZLR 617 (CA) at [46]–[49].

^[21] The defended hearing later proceeded before Katz J, as discussed.

^[22] Minute of Woolford J, above n 1, at [8].

^[23] This appears to be the first point at which Mr and Mrs Navaratnam refused to accept HG Metal was entitled to be represented by its solicitors. Their failure or refusal to serve HG Metal’s solicitors with documents has been a feature throughout the litigation.

^[24] Navaratnam v HG Metal Manufacturing Ltd [2022] NZCA 185 at [16].

^[25] At [15].

^[26] At [16].

^[27] At [22]–[23].

^[28] HG Metal Manufacturing Ltd v Navaratnam [2021] NZHC 2498.