Cosmo Holdings Limited v Clark - [2024] NZHC 3875

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2024-485-000606

[2024] NZHC 3875

UNDER
s 119 of the Residential Tenancies Act 1986, and r 2.5, r 2.11(1) and (5), r 7.19(4), r 7.23

of the High Court Rules and s 34 of the Senior Courts Act 2016

IN THE MATTER OF

Appeal against Tenancy Tribunal Decisions dated 9 March 2023 (interim) and dated

6 October 2023 (final)

BETWEEN

COSMO HOLDINGS LIMITED

Applicant

AND

SAMUEL THOMAS CLARK AND GISELA BEUKES

Respondents

Hearing: (On the papers)

Counsel:

S Dai as Director of Cosmo Holdings Ltd

Judgment:

17 December 2024

JUDGMENT OF BOLDT J

[Application to recall 4 October 2024 judgment, application for leave to appeal]

[1] The appellant, which wishes to bring a second appeal against a decision of the Tenancy Tribunal, is a company. Ms Dai is the company’s director. She is not a lawyer.

[2] Nonetheless, Ms Dai wishes to appear on the company’s behalf in this Court. The Registrar declined to accept the company’s notice of appeal for filing,

COSMO HOLDINGS LIMITED v CLARK AND BEUKES [2024] NZHC 3875 [17 December 2024]

and on 4 October 2024 I dismissed Ms Dai’s application to review the Registrar’s decision.1

[3] The Registrar declined to accept the applicant’s notice of appeal because it was signed in person by Ms Dai, rather than by a lawyer acting for the company. The Registrar noted that a corporate litigant must be represented by counsel, and that a litigant in person, regardless of their role in the company, is not entitled to represent a company in the High Court.

[4] In dismissing Ms Dai’s application for review, I noted that McHerron J had recently considered and determined a near-identical application by Ms Dai in other proceedings. In a review judgment dated 3 May 2024,2 and in a decision dated 1 October 2024 declining Ms Dai’s application for leave to appeal,3 McHerron J concluded Ms Dai had not advanced any ground which might make it appropriate to depart from the normal rule that a corporate litigant must be represent by counsel. I adopted McHerron J’s analysis and reached the same conclusion.

[5] In rejecting Ms Dai’s submission that she is well qualified to represent the company in this Court, McHerron J noted the prolix and unfocused nature of the documents she had filed and the procedural errors which had characterised her interactions with the Court to date. While the Court may in exceptional circumstances permit a layperson to appear on behalf of a company,4 McHerron J concluded Ms Dai had not demonstrated that her case is one which falls within that narrow exception.

[6] Ms Dai has brought two applications arising from my decision. First, she (informally) asked me to recall my judgment because McHerron J’s decisions have been, or will be, challenged. Ms Dai observes that McHerron J’s review decision “is currently in the appeal process and shall not be the legal basis to be relied upon”,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 3875
Decision Date: 17 December 2024

CaseChat Overview and Summary

In the High Court of New Zealand, Cosmo Holdings Limited sought to appeal decisions of the Tenancy Tribunal made against Samuel Thomas Clark and Gisela Beukes. The company, represented by its director, Ms Dai, faced a challenge due to the requirement that corporate litigants be represented by counsel. The Registrar had declined to accept Cosmo Holdings' notice of appeal as it was signed by Ms Dai instead of a lawyer. This led to the dismissal of Ms Dai's application to review the Registrar's decision, which was upheld by the Court. The Court found that Ms Dai had not demonstrated exceptional circumstances justifying her representation of the company. Ms Dai then sought to recall the Court's judgment and applied for leave to appeal.

The legal issues revolved around whether Ms Dai, as a layperson and director of the company, could represent Cosmo Holdings in Court, and whether there were grounds to recall the Court's judgment or grant leave to appeal. The Court needed to determine if Ms Dai's representation was permissible under the rules and if her applications met the stringent criteria for recall or leave to appeal. The Court considered the precedent set by McHerron J, who had previously ruled against Ms Dai's similar applications.

The Court rejected Ms Dai's arguments, noting that laypersons generally cannot represent companies in the High Court. The Court emphasized the importance of legal representation in complex matters, particularly in second appeals where a sound understanding of the law is crucial. The Court found that Ms Dai had not demonstrated any exceptional circumstances or fundamental errors warranting the recall of its judgment. Moreover, the principles governing leave to appeal were stringent, and Ms Dai had not identified an arguable error of law or fact of sufficient importance to warrant an appeal.

Ultimately, the Court declined Ms Dai's application to recall the judgment and her application for leave to appeal. It was reiterated that Cosmo Holdings, like any other corporate litigant, must be represented by counsel to pursue further legal challenges.

Orders