Supreme Court Denies Non-Lawyer Representation for Company Appeal

OUTCOME: Dismissed

[APPELLANT[COMPANY] v [RESPONDENT[COMPANY] [2026] NZSC 80 [12 June 2026]

IN THE SUPREME COURT OF NEW ZEALAND I TE KŌTI MANA NUI O AOTEAROA SC 28/2026 [2026] NZSC 80

[APPELLANT] Applicant AND [RESPONDENT] [ADDRESS]: [COUNSEL] France, Williams and Miller JJ Counsel: [redacted] [COUNSEL] P [COUNSEL] for Respondent Judgment: 12 June 2026

JUDGMENT OF THE COURT

A The application by [NAME] for leave to be represented by a non-lawyer is dismissed.

B There is no award of costs. ____________________________________________________________________

REASONS Background [1] [APPELLANT[COMPANY] ([NAME]) wishes to bring an application for leave to appeal. The proposed appeal relates to the refusal of the Court of Appeal earlier this year to grant an extension of time to appeal a High Court judgment delivered in 2018.1 The High Court had awarded the respondent, [RESPONDENT[COMPANY], $191,243.55 in damages, interest and costs against [NAME]2

1 [APPELLANT[COMPANY] v [RESPONDENT[COMPANY] [2026] NZCA 7 (Mallon, Cooke and Whata JJ) [CA judgment]; and [RESPONDENT[COMPANY] v [APPELLANT[COMPANY] [2018] NZHC 3149 (Katz J) [HC judgment]. 2 See HC judgment, above n 1, at [106]; and CA judgment, above n 1, at [9].

[2] [NAME] is the sole director of, and a shareholder in, [NAME]. He sought to file the leave application in this Court on behalf of [NAME]. The registry rightly treated this as an informal application by [NAME] for leave to be represented by Mr [NAME]. In this judgment we address only that question. [3] [NAME] must obtain leave to be represented by Mr [NAME] because he is not a lawyer. This is the effect of the rule in Re G J Mannix that, subject to the court’s discretion, a company may only commence and carry on proceedings through a lawyer.3 Mr [NAME] says [NAME] is impecunious and cannot afford a lawyer. [4] Mr [NAME] was allowed to represent [NAME] in the High Court, where it was the defendant.4 He was assisted by a [RESPONDENT] friend. [ADDRESS] of Appeal also permitted Mr [NAME] to appear on behalf of [NAME], but only in relation to its unsuccessful application for leave to appeal out of time.5 [5] The underlying proceeding is a contractual dispute. [RESPONDENT] supplied meat products to [NAME] for export to China. Several containers failed to clear Chinese ports. [NAME] blamed [RESPONDENT] and withheld payment, claiming a set-off. [RESPONDENT] sued on the unpaid invoices. [NAME] counterclaimed. In the High Court, Katz J held the amounts claimed by [RESPONDENT] were largely payable and gave judgment accordingly. The Judge rejected [NAME]’s counterclaims.6 [6] Apart from the release to [RESPONDENT] of $20,298.10 held by the Court as security for costs, the judgment sum has not been paid by [NAME]7 [RESPONDENT] did not pursue payment because [NAME] has no assets. [RESPONDENT] takes the view that enforcement action is now time-barred.

3 Re [COMPANY] [1984] 1 NZLR 309 (CA) at 310. The rule is subject to specific statutory exceptions—see, for example, Criminal Procedure Act 2011, s 11. 4 See [RESPONDENT[COMPANY] v [APPELLANT[COMPANY] [2017] NZHC 2218 (Hinton J). 5 [APPELLANT[COMPANY] v [RESPONDENT[COMPANY] CA311/2025, 26 June 2025 (Ellis J); and see CA judgment, above n 1, at [23]. 6 HC judgment, above n 1, at [107]. 7 CA judgment, above n 1, at [9].

Submissions [7] Once apprised of this Court’s intention to consider whether [NAME] should be granted leave to be represented by a non-lawyer, Mr [NAME] filed a memorandum in support of that outcome. The respondent filed a memorandum in opposition. [8] Mr [RESPONDENT] lists four factors that he says are relevant to the exercise of this Court’s discretion and submits that a consideration of them supports leave in this case. The factors are whether the applicant is the sole director and controlling mind of the company,8 whether the company has financial means to instruct counsel, whether the proposed representation would prejudice the administration of justice and whether refusing leave would effectively deny access to the Court. While Mr [NAME] relies on each of these factors, he places particular emphasis on the fact that [NAME] does not have the financial means to instruct counsel. [9] The respondent opposes leave, submitting that a lack of financial resources is not alone sufficient. It also submits shareholders in [NAME] have financial means and observes no contrary evidence has been filed. The respondent acknowledges that Mr [RESPONDENT] has a common interest with [NAME] but submits that interest undermines the objectivity the Court is entitled to expect. Assessment [10] Although exceptions are made in deserving cases, the courts are reluctant to allow companies to be represented by non-lawyers in litigation. In [COMPANY] v [COMPANY], Jagose J observed that the “benefits of securing [APPELLANT] liability carry with them a range of obligations, of which the requirement to obtain legal representation in Court proceedings is one.”9 In Radford v Samuel, Sir [APPELLANT] MR expanded on this point, commenting that [APPELLANT] liability is:10 … a benefit bought at a price. Part of the price is that … a corporation cannot act without legal advisers. The sense of [the rule] plainly is that [APPELLANT]

8 By “applicant”, Mr [COUNSEL] assumably intends “proposed representative”. [NAME] is the applicant. 9 [COMPANY] v [COMPANY] [2018] NZHC 679 at [23]. [ADDRESS] of Appeal in [NAME] v [COMPANY] [2013] NZCA 53, [2013] 2 NZLR 679 at [34] discussed also the “policy reasons” for the Mannix rule. 10 Radford v Samuel [1993] BCC 870 (CA) at 872.

companies, which may not be able to compensate parties who litigate with them, should be subject to certain constraints in the interests of their potential creditors. [11] The circumstances of this application, it might be said, demonstrate the efficacy of the Mannix rule. While permitting Mr [RESPONDENT] to represent [NAME] in order to defend [RESPONDENT]’s claim in the High Court might have been justified, extending that to challenging the Court of Appeal’s refusal to grant an extension of time in circumstances involving delay of more than six years cannot be justified without strong grounds. In the present case, the value of independent counsel’s ability to bring a measure of objectivity to their task would be much needed, given the extent of the delay in seeking to challenge the High Court decision and the procedural obstacles [NAME] faces in obtaining leave to appeal. We note in this respect the comments of [NAME] in her substantive judgment:11 [11] Mr [NAME] is in the unfortunate position of having lost his business. [[NAME]] is no longer trading. Not surprisingly, this has caused Mr [NAME] considerable distress. He lays the blame for the loss of his business squarely at the door of [RESPONDENT]. This belief has strongly coloured how he now views the relevant events. Key aspects of his evidence were not supported by the contemporaneous record, and were often contradicted by it. Mr [NAME] was frequently unwilling to make concessions in cross-examination, even when such concessions were clearly called for. At other times his evidence was discursive or evasive. He is clearly a man of firm views. Due to his deep emotional involvement in the subject matter of this proceeding, it is my view that he struggled to bring the required degree of objectivity to aspects of his evidence. [12] Added to these considerations is the fact that the issues arising in the proposed appeal are factually and technically complex. The assistance of counsel would be indispensable in advancing the leave application. [13] Finally, Mr [NAME] understandably places much emphasis on [NAME]’s impecuniosity. But this factor cuts both ways. If [NAME] cannot afford to instruct counsel to advance its application, it will also be in no position to pay [RESPONDENT]’s costs if it is unsuccessful either at the leave stage or, should leave be granted, in a substantive appeal.

11 HC judgment, above n 1.

Result [14] The application by [NAME] for leave to be represented by a non-lawyer is dismissed. [15] The respondent has not sought costs. In the circumstances, including [NAME]’s alleged impecuniosity, there is no award of costs.

Solicitors: [redacted]