B & D Holdings Limited v Warren HC Auckland CIV 2010-404-006194

[2011] NZHC 120

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2010-404-006194

IN THE MATTER OF     Section 72 District Courts Act 1947

BETWEEN  B & D HOLDINGS LIMITED Appellant

ANDLUCAS ATEREA WARREN Respondent

Hearing:         17 February 2011

Appearances: G M Harrison for Appellant

No appearance for Respondent
P Gunn for Solicitor-General

Judgment:      17 February 2011

ORAL JUDGMENT OF WHITE J

Solicitors/Counsel:

G M Harrison, PO Box 4338 Shortland Street, Auckland 1140, Email:  [email protected]

P Gunn, Crown Law, PO Box 2858, Wellington 6140, Email:  [email protected]

B & D HOLDINGS LTDV WARREN HC AK CIV 2010-404-006194 17 February 2011

[1]      This  is  an  appeal  relating  to  the  sum  of  $755.78  in  interest  which  the appellant judgment creditor seeks to have added to a District Court attachment order against the respondent judgment debtor who does not oppose the addition of this amount in interest to the judgment debt of $5,257.72.  By memorandum dated 6 May

2010 the judgment debtor has effectively consented to that outcome.

[2]      The judgment debtor has played no part in the appeal.  Instead the Solicitor- General was asked to appear and make submissions to assist the Court: see the minute of Asher J dated 5 October 2010.  Mr Gunn has appeared as counsel for the Solicitor-General and made helpful written and oral submissions.

[3]      The appeal has been brought under s 72 of the District Courts Act 1947 against a decision of Judge P Recordon in the District Court at Waitakere delivered on 19 August 2010 declining to review directions of a Registrar of the District Court at Hamilton. The directions sought to be reviewed were:

(a)       an  adjournment  of  an  examination  of  the  judgment  debtor  on

24 February 2010 to 3 March 2010 in order to obtain legal advice; and

(b)a  stay  under  s  84E(1)(c)  of  the  District  Courts Act  1947  of  the proceeding for the enforcement of the judgment order.

[4]      Judge Recordon declined to grant the review essentially on the ground that the Registrar had subsequently rescinded his stay decision on 3 March 2010 with the consequence  that  the  adjournment  or  new  hearing  for  the  examination  of  the judgment debtor could proceed.   Judge Recordon transferred the file back to the Hamilton  District  Court  for  the  examination  order  “with  interest  included”  to proceed before the Registrar.

[5]      For the judgment creditor, Mr Harrison argued on appeal that the District Court Judge should not have remitted the case to the District Court at Hamilton for the addition of the interest to the attachment order, but should have taken that step himself under s 84M(1) of the District Courts Act 1947.  The failure of the District

Court Judge to do so should be remedied on appeal by this Court acting under ss 72,

75 and 76 of the District Courts Act 1947.

[6]      For the Solicitor-General, Mr Gunn submitted that the District Court Judge’s powers of review under s 84N of the District Courts Act 1947 did not extend to rescinding the Registrar’s adjournment decision or to making an order under s 84M varying the attachment order.  The High Court therefore had no power on appeal to take these steps and the decision of the District Court Judge remitting the matter to the  District  Court  at  Hamilton  to  add  the  interest  to  the  attachment  order  was therefore correct.

[7]      There is no dispute that:

(a)      The sum of $755.78 in interest should be added to the attachment order.

(b)      The Registrar of the District Court at Hamilton could have done so on

24 February 2010 under ss 84E(1)(d) or 84M(1) of the District Courts

Act 1947.

(c)      The Registrar had power under s 84D of the District Courts Act 1947 to adjourn the hearing on 24 February 2010 to 3 March 2010 to obtain legal advice, but had no need to do so.

(d)      The Registrar had power under s 84E(1)(c) of the District Courts Act

1947 to stay the proceeding, but there was no basis for doing so.

(e)      The Registrar had power under r 1.15 of the District Court Rules 2009 to recall or rescind his order staying the proceeding and it was correct to do so.

(f)      The  judgment  creditor’s  notice  of  application  for  review  of  the Registrar’s decision, interpreted liberally, related to both the adjournment and stay decisions of the Registrar.  It also referred in its grounds to the Registrar’s “refusal to vary an order as to interest”, but

there is no suggestion that District Court Judge Recordon himself considered the question of variation of the attachment order under s 84M.  The Registrar had adjourned not determined that question.

[8]      Having given careful consideration to the written and oral submissions for the judgment creditor, I am satisfied for the following reasons that the appeal should be dismissed.

[9]      The powers of a District Court Judge on review are constrained by s 84N of the District Courts Act 1947 which provides:

84N     Review of Registrar's decision

(1)       Any person affected by any order or direction made by a Registrar under section 84B or section 84C or section 84E or section 84G or section 84M of this Act may apply to a District Court Judge for a review of the order or direction.

(2)       Every such application shall be made within 21 days of the making of the order or direction, or within such further time as a Judge, on application, may allow.

(3)       The Judge may, on receiving any such application, order that any such order or direction shall be suspended pending the review.

(4)       On any such review the Judge may confirm, rescind, or vary the Registrar's order or direction, and the order or direction shall have effect, or cease to have effect, accordingly.

[10]     In this case the District Court Judge clearly had power under s 84N(1) of the District Courts Act 1947 to rescind the Registrar’s order staying the proceeding because it was made under s 84E(1)(c), one of the provisions referred to in s 84N(1), but, as the Registrar had already recalled or rescinded that decision himself, there was, as District Court Judge Recordon recognised, no need for him to do so.

[11]     Equally clearly, however, the District Court Judge did not have power under s 84N(1) to rescind the Registrar’s adjournment decision under s 84D of the District Courts Act 1947.   Not only is s 84D conspicuous by its absence from the list of provisions referred to in s 84N(1), but it is understandable that procedural directions such as an adjournment should not be the subject of review.

[12]     Furthermore, there is nothing in s 84N of the District Courts Act 1947 to support Mr Harrison’s argument that as a consequence of the rescission of the stay, the District Court Judge had power to rescind the adjournment and to vary the attachment order under s 84M.   It was a review of the directions made by the Registrar, not an appeal against a decision (not to vary the attachment order) which had not been made.

[13]     The High Court has no greater powers than the District Court had on review. Sections 75 (Appeals to be by way of rehearing) and 76 (Powers of High Court on appeal) of the District Courts Act 1947 do confer broad powers on the High Court on appeal, but they are not that broad.  In an appeal of this nature they do not empower the High Court to make a decision which the District Court had no power to make under s 84N.  Mr Harrison cited no authority to support the approach suggested.

[14]     The District Court Judge, therefore, acted correctly in remitting the matter to the District Court at Hamilton for the Registrar to proceed to vary the attachment order under s 84M by adding the amount for interest.

Result

[15]     For these reasons the appeal is therefore dismissed.

[16]    The Solicitor-General is entitled to his costs on a category 2B basis in accordance  with  the  minute  of  Asher  J  dated  5  October  2010  at  [5],  with

disbursements to be fixed by the Registrar.

D J White J