Belyaev v Tenancy Tribunal HC Auckland CIV 2003-404-7322

[2010] NZHC 2194

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2003-404-7322

IN THE MATTER OF     The Judicature Amendment Act 1972

AND

IN THE MATTER OF     of a decision of the Tenancy Tribunal at

Auckland on 2 April 2002

BETWEEN  ANDREI MIKHAILOVICH BELYAEV Plaintiff

ANDTENANCY TRIBUNAL Defendant

Hearing:         6 December 2010

Appearances: Plaintiff in person

A R Longdill for the Respondent

Judgment:      6 December 2010

REASONS FOR JUDGMENT OF ELLIS J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Copy To:      Andrei M Belyaev, 4/21 Grove Road, Sandringham, Auckland 1025

BELYAEV V TENANCY TRIBUNAL HC AK CIV-2003-404-7322  6 December 2010

[1]      Mr Belyaev has applied to set aside a discontinuance that was filed on his behalf on 30 March 2004 in relation to an application for judicial review of the outcome of proceedings in the Tenancy Tribunal that had been commenced by him in  2002.    Essentially  it  seems  Mr Belyaev  discontinued  those  judicial  review proceedings on the basis of legal advice he had received from a Legal Aid lawyer. He  now  takes  issue  with  that  advice  and  says  that  he  filed  the  notice  of discontinuance under either duress or misapprehension.

[2]      On 28 October 2010 the present application was called before Venning J who recorded, inter alia:

This application is hopelessly out of time.   The Court rules apply for an application to set aside a discontinuance to be made within 25 working days.

While the rules provide for an extension of time for any such application to be made I can see no prospect whatsoever of the Court granting such an extension in this case, given the length of time that has passed since the discontinuance was filed and given the matters in issue.

The application is, in my judgment, seriously flawed.  It is also defective in that to date it has not yet been served on a party who might be affected by it, the landlord of the premises.   The landlord was a party to the substantive proceedings that were discontinued.  At the very least the application must also be served on that landlord.

[3]      Venning J adjourned the matter one further time to enable Mr Belyaev to consider his position and “if he wishes  to take the matter further, to  serve the landlord.”

[4]      When Mr Belyaev appeared before me today he advised that he had been unable to serve the landlord because he has been unable to find him. That, of course, merely underscores the difficulty caused by the six year time gap between the filing of the discontinuance and the making of the present application.  I was also advised by Ms Longdill for the Tenancy Tribunal that the Tribunal file on the matter has been destroyed, again due to the effluxion of time, and the Tribunal adjudicator who had heard the matter has in fact since died.

[5]      The  Court  may  only  set  aside  a  discontinuance  under  r  15.22  on  the application of a defendant and “if it is satisfied that the discontinuance is an abuse of the process of the Court.”   Any such application is required to be made within

25 working days after the discontinuance.  Although it appears that the Court may also retain a inherent jurisdiction to set aside a discontinuance it is most unlikely that such jurisdiction has an ambit that is any broader that r 15.22.

[6]      A very helpful review of the relevant authorities (most of which emanate from overseas jurisdictions) is contained in Wylie J’s judgement of today’s date in Telstra New Zealand Holdings Ltd v CIR.[1]     It is one of only two cases in New Zealand that appears to have considered the issue.  There can be no doubt that the power to set aside is extremely rarely exercised.

[1] Telstra New Zealand Holdings Ltd v CIR HC Auckland CIV 2009-404-000120, CIV 2010-404-

002826, 6 December 2010.

[7]      In  my  view,  however,  there  is  no  need  to  have  recourse  to  the  limited authorities on the issue.   The reasons why Mr Belyaev’s application must fail are evident on the face of r 15.22.

[8]      First, it requires that the application be made by a former defendant, not a former plaintiff such as Mr Belyaev.

[9]      Secondly (and relatedly) a discontinuance will only be set aside if the Court is satisfied that the plaintiff (in filing the discontinuance) has abused the Court’s process by which is broadly meant the use of the Court process to exert improper pressure on a defendant or to effect a purpose unconnected with the purpose for which the proceedings were commenced.

[10]     In the present case there is no suggestion in Mr Belyaev’s application that it is the Court’s process that has been abused, rather it is his own complaint about the legal  advice  he  received  in  2004  that  forms  the  basis  for  the  application. Accordingly, and even putting to one side the six year delay, I am unable to see any possible basis on which I am able to revivify the 2004 proceeding.

[11]     Even if I am wrong in either or both of these respects, the six year delay (regardless of whether responsibility for it can be sheeted home to Mr Belyaev) would in my view conclusively militate against the reactivation of the proceedings in this case.  The three specific difficulties posed by the delay to which I have already adverted are, I suspect, only a sample of those with which a Court would be faced were I to permit the matter to be reopened.

[12]     For the above reasons, I decline to make an order setting the discontinuance aside and Mr Belyaev’s application is dismissed accordingly.

Rebecca Ellis J