Cosmo Holdings Limited v Van Dyk - [2024] NZHC 1071

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CIV-2024-485-204

[2024] NZHC 1071

UNDER Section 119 of the Residential Tenancies Act 1986, and rr 2.5, 2.11(1) and (5), 7.19(4) and
7.23 of the High Court Rules 2016

IN THE MATTER

of an appeal against a Tenancy Tribunal decision dated 28 March 2023

BETWEEN

COSMO HOLDINGS LIMITED

Applicant

AND

ILANA SEAGER VAN DYK AND BRUCE SEAGER VAN DYK

Respondent

Hearing: On the papers

Judgment:

3 May 2024

JUDGMENT OF McHERRON J

Introduction

[1] This is an application to review a decision of the Deputy-Registrar to refuse to accept documents for filing. I dismiss the application for review, for the following reasons.

Background

[2] Cosmo Holdings Ltd seeks to appeal a decision of the District Court dismissing its appeal against a decision of the Tenancy Tribunal.1 In its decision of 28 March 2023, the Tribunal ordered Cosmo Holdings to pay the tenants of its property

1 Cosmo Holdings Ltd v van Dyk [2024] NZDC 1624.

COSMO HOLDINGS LIMITED v VAN DYK [2024] NZHC 1071 [3 May 2024]

exemplary damages of $3,500 (plus the filing fee). The Tribunal found that Cosmo Holdings gave its tenants an unlawful and retaliatory notice of termination of their tenancy.

[3] The director of Cosmo Holdings, Sandy Dai, submitted various documents to this Court through File and Pay on 5 April 2024.2 On 15 April 2024, the Deputy Registrar emailed Ms Dai to advise that the documents could not be accepted for filing, because:3

1. The appellant is Cosmos [sic] Holdings Ltd and you appear to be representing this company in your notice of appeal.

A Litigant in person, whether an officer of the company or another agent of it, cannot represent a company as of right in litigation in the Court of Appeal or in the High Court.

[4]The Deputy Registrar’s email also:

(a)identified a relevant decision of the Court of Appeal, Re G J Mannix Ltd, a copy of which the Deputy Registrar attached for Ms Dai’s information, together with relevant page references from that decision;4

(b)advised Ms Dai that even if her Court documents were able to be accepted for filing, various amendments would need to be made to them;

(c)pointed out that an outstanding fee was payable for the on-notice application for stay of proceedings;

(d)stated that she was returning the Court documents to Ms Dai.

[5] Ms Dai disagreed with the Deputy Registrar’s decision. She submitted that Re G J Mannix permitted her to represent Cosmo Holdings. Ms Dai pointed out that there have been numerous Tenancy Tribunal appeals to the High Court in which

2      A notice of appeal, notice of interlocutory application for stay of proceeding, affidavit in support and bundle of documents.
3      Emphasis in original.
4      Re G J Mannix Ltd [1984] 1 NZLR 309 (CA).

company owners have been self-representing. She referred to Whakatihi v Rent Assured Rotorua Ltd as an example.5

[6] Ms Dai later identified…

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 1071
Decision Date: 3 May 2024

CaseChat Overview and Summary

Cosmo Holdings Limited, represented by its director Sandy Dai, sought to appeal a decision of the Tenancy Tribunal to the High Court, via the District Court. The Tribunal had found that Cosmo Holdings issued an unlawful and retaliatory notice of termination to its tenants, ordering the company to pay exemplary damages of $3,500. Sandy Dai attempted to file appeal documents through File and Pay, but the Deputy Registrar refused to accept them. Ms Dai then filed an interlocutory application without notice, seeking a review of the Deputy Registrar's decision and a stay of the proceedings.

The central legal issue was whether the Deputy Registrar was correct in refusing to accept the appeal documents filed by Ms Dai, and if so, whether this decision could be reviewed by the Court. Ms Dai argued that the Re G J Mannix Ltd case provided a discretion to depart from the general rule that companies must be represented by a solicitor, especially in minor matters or straightforward cases. However, the Court found that there were no exceptional circumstances justifying a departure from the general rule in this case.

The Court found that the Deputy Registrar was correct to refuse the appeal documents. The general rule is that companies must be represented by a solicitor when filing documents and representing them in Court. This principle was upheld in 89 Courtenay Place Ltd v Portland Wines Ltd. The Court also found that there was no merit to Ms Dai's other grounds for review, and that Cosmo Holdings must instruct a lawyer to file compliant appeal documentation and represent it in the proceedings. Consequently, Ms Dai's application for review was dismissed.

In conclusion, the Court upheld the Deputy Registrar's decision to refuse the appeal documents filed by Ms Dai, finding that there were no exceptional circumstances to justify a departure from the general rule that companies must be represented by a solicitor. The Court dismissed Ms Dai's application for review and denied any stay of proceedings.

Orders