Lack of funds alone not enough to win company right to argue its own case
The Supreme Court has barred a company director from arguing its case, ruling that being unable to afford a lawyer was not enough.
In NZ Premium Trading Company Ltd v AFFCO New Zealand Ltd [2026] NZSC 80, Justices Ellen France, Williams, and Miller dismissed an informal application by NZ Premium Trading Company Ltd (NZPTCL) to be represented by Andrew Parkinson – its sole director and a shareholder – who was not a lawyer.
NZPTCL wanted to bring an application for leave to appeal. That proposed appeal challenged the Court of Appeal's earlier refusal to grant an extension of time to appeal a 2018 High Court judgment. In that judgment, the High Court awarded Auckland Farmers Freezing Company (AFFCO) $191,243.55 in damages, interest, and costs against NZPTCL.
Because Parkinson was not a lawyer, NZPTCL needed leave to be represented by him. The court applied 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. Parkinson said NZPTCL was impecunious and could not afford a lawyer. He had earlier been allowed to represent the company in the High Court, where it was the defendant, and the Court of Appeal had let him appear, but only on its unsuccessful bid to appeal out of time.
The underlying dispute was contractual. AFFCO supplied meat products to NZPTCL for export to China, and several containers failed to clear Chinese ports. NZPTCL blamed AFFCO, withheld payment, and claimed a set-off. AFFCO sued on the unpaid invoices and NZPTCL counterclaimed. Justice Katz held the amounts AFFCO claimed were largely payable and rejected the counterclaims. The judgment records that, apart from $20,298.10 released to AFFCO from security held by the court, the sum remains unpaid; AFFCO did not pursue payment because the company had no assets, and it now considered enforcement time-barred.
Parkinson argued that several factors favoured leave, including whether he was the company's sole director and controlling mind, whether the company could afford counsel, whether his representation would prejudice the administration of justice, and whether refusing leave would deny access to the court. He placed particular weight on the company's lack of means. AFFCO opposed leave, submitting that a lack of resources alone was insufficient, that shareholders had financial means, and that Parkinson's common interest with the company undermined the objectivity the court expected.
The court accepted that courts make exceptions in deserving cases but stressed their reluctance to allow companies to be represented by non-lawyers. It cited Radford v Samuel, in which Sir Thomas Bingham MR described limited liability as "a benefit bought at a price," part of which is that "a corporation cannot act without legal advisers."
The court found that extending Parkinson's earlier permission to challenge a refusal involving more than six years' delay could not be justified without strong grounds. It noted Justice Katz's earlier finding that Parkinson's "deep emotional involvement" in the matter meant he "struggled to bring the required degree of objectivity to aspects of his evidence." The issues in the proposed appeal were also factually and technically complex, making counsel's assistance "indispensable."
Finally, the court observed that impecuniosity "cuts both ways": a company that cannot fund counsel would also be unable to meet AFFCO's costs if it lost. The court dismissed the application and made no order for costs.
