Finch v Quinovic Property Management Limited

[2021] NZHC 2009

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2021-409-299

[2021] NZHC 2009

BETWEEN

PETER FINCH

Plaintiff

AND

QUINOVIC PROPERTY MANAGEMENT LIMITED

Defendant

Appearances:	P Finch (in person)
Judgment:	5 August 2021
(Determined on the papers)

JUDGMENT OF OSBORNE J

This judgment was delivered by me on 5 August 2021 at 11.00 am pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

FINCH v QUINOVIC PROPERTY MANAGEMENT LIMITED [2021] NZHC 2009 [5 August 2021]

[1]Peter Finch has filed a number of documents as follows:

(a)a document called “Judicial Review”;

(b)a bundle of materials relating to a decision of the Tenancy Tribunal (Tribunal). This includes extracts from the decision with Mr Finch’s annotated criticisms or disagreements, further materials relating to that decision with similar annotations, extracts from legislation, and character references; and

(c)extracts from a judgment arising from Mr Finch’s appeal to the District Court against the Decision, with annotations recording Mr Finch’s criticisms or disagreements with that Judgment.

(together “the Proceeding”).

[2]        The Registrar has referred these documents to me under rr 5.35A to 5.35C High Court Rules 2016 to determine if the proceeding should be struck out on the basis it is plainly an abuse of the process of the Court.

Background

[3]I summarise the background upon the basis of my reading of the documents.

[4]        Mr Finch was a tenant at 43C Wharenui Rd, Upper Riccarton, Christchurch (the property). The property was managed by Quinovic Property Management Limited (Quinovic) on behalf of the property owner.

[5]        Mr Finch brought a claim in the Tribunal relating to his tenancy. Quinovic cross-claimed.

[6]        The Tribunal, in its decision dated 14 September 2020 (the First Tribunal Decision), found against Mr Finch on his claim (except as to a matter relating to a spa pool) and found for Quinovic on the counterclaim. The Tribunal ordered the termination of Mr Finch’s tenancy with immediate effect and ordered Mr Finch pay

$339.87 to Quinovic (being the balance owing by him after awards to both landlord and tenant were set off).

[7]        Mr Finch appealed to the District Court. His appeal, set down for a day, came before Judge Crosbie on 14 April 2021.

[8]        The Judge issued an oral judgment on the same day. He recorded that in his view, a day was not an adequate time allocation for the appeal and noted the material he was being asked to consider on the appeal was not well organised.1 Mr Finch disagrees with both those conclusions. The Judge said no copies of the materials had been made available to him – Mr Finch made a USB stick available to the Court that day, but the Judgment records that the Registrar advised the Court that there were some 1,700 JPEG documents which the Registry could not copy.2

[9]        The Judge noted that during the hearing of the appeal, information was provided to the Court from the Christchurch City Council which both parties had the opportunity to consider. The Judge recorded:3

On viewing that information, and after considerable discussion throughout the day, the Court formed the view that there were three options, it [c]ould:

(a)Quash [the Tribunal Decision] and order a rehearing; or

(b)Quash the [the Tribunal Decision] today but continue this appeal on another day with directions made as to filing etc; or

(c)The parties were free to settle the matter (based on the information from the CCC).

[10]      The Judgment records that the Court, to a limited extent, participated in the third option. The Judge said:4

I have not had a hand in any of the figures that have been suggested, but I am pleased to record that the parties have come to a final resolution. I record that Mr Finch was made well aware of his options, as above, and his strong preference was to resolve the matter today on the terms that I am going to set out.

1      Finch v Quinovic Property Management Ltd [2021] NZDC 6741.

2      At fn 1.

3 At [7].

4 At [8].

[11]      The Judge recorded at the conclusion of his decision that by consent the Order of the Tribunal dated 14 September 2020 was quashed and that without admission of liability the respondent was to pay $6,639.75 to Mr Finch within 14 days and the Housing Corporation Bond Centre was to release Mr Finch’s bond to him. There were other aspects of the settlement which need not be repeated here.

[12]      The settlement has been given effect to, although Mr Finch complains of a delay in the release of the bond. The amount directed to be paid to Mr Finch by Quinovic has been paid, although Mr Finch records that amount was “quickly snapped up by creditors”.

[13]      Also included in Mr Finch’s materials is an extract from a further Tribunal decision dated 7 July 2021 (the Second Tribunal Decision). While the full text of that decision is not included, it appears that Mr Finch commenced a claim in the Tribunal against the owner of the property, Mr Murchison, on the basis that the party he originally brought the claim against in the Tribunal was Quinovic. Mr Murchison, in response to that claim, argued that any dispute Mr Finch had with him as landlord was settled through the agreement recorded in Judge Crosbie’s decision. Mr Finch’s position was that the consent order only applies between himself and Quinovic.

[14]      The Tribunal recorded Mr Finch’s frustrations and the Tribunal’s suspicion that Mr Finch regretted agreeing to the settlement recorded by Judge Crosbie. The Tribunal rejected Mr Finch’s further application on the basis that there was only ever one tenancy. The Tenancy Agreement was between Mr Finch and Mr Murchison. The Tribunal dealt with Quinovic as Mr Murchison’s agent. There was no tenancy between Quinovic and Mr Finch.

[15]Accordingly, Mr Finch’s second application to the Tribunal was dismissed.

What does Mr Finch seek to review?

[16]      Mr Finch’s documents are not focused on any particular decision which he says should be subject to review. The First Tribunal Decision from 14 September 2020 has been quashed and so is no longer susceptible to review.

[17]      The District Court Judgment does not in reality record a decision at all, save for the quashing of the First Tribunal Decision (which Mr Finch consented to). Rather the purpose of the Judgment is to record an agreed settlement.

[18]      The Second Tribunal Decision, dated 7 July 2021, is a finding that the settlement prevents Mr Finch bringing a further claim against Mr Murchison, the landlord.

Is Mr Finch’s claim “plainly an abuse of process”?

[19]      I may strike out the plaintiff’s proceeding under r 5.35B only if it is plainly an abuse of the process of the Court.

[20]      Mr Finch’s papers do not set out a legal cause of action – such has been held to mean a proceeding is an abuse of process.5 If the proceeding is not capable of being amended to turn it into a valid claim, it should be struck out.

[21]      Mr Finch’s proceeding appears to be a challenge to the settlement reached with Quinovic and recorded in Judge Crosbie’s decision. In the document headed “Judicial Review”, Mr Finch says he only agreed to the settlement because he had broken down emotionally.

[22]He states:

I was tired, frustrated, cornered, and reluctantly relented due to the pressure of it all and also the fact that I had people lined up waiting for their money and could not be delayed any further.

[23]      Judicial review is not a mechanism for setting aside a consent judgment. The court in which the consent order was made has the ability to set aside a consent order on grounds that would justify setting aside a contract if the interests of justice require it.6

5      Smyth-Davoren v Parker [2018] NZHC 3034.

6      Phillips v Phillips [1993] 3 NZLR 159 (CA); and Waitematā  City Council v MacKenzie [1988] 2 NZLR 242 (CA).

[24]      Judicial review, at the risk of over-simplifying it, is concerned with the means by which a decision-maker reached a decision. A challenge to a consent order relates to how the parties to the consent order reached their agreement reflected in the order. The issue in such a case is whether the agreement inherent in the consent order is susceptible to being set aside.  Judicial  review  is  not  the  correct  procedure  for Mr Finch to adopt if his challenge is to the consent orders.

[25]      The practical reality is that for Mr Finch to pursue a challenge either against Quinovic or Mr Murchison, he will  need  to  have  the  consent  orders  set  aside. Mr Finch does not identify any error in the Second Tribunal Decision  dismissing  Mr Finch’s second claim on the grounds that the consent orders were a complete answer to Mr Finch’s claim.

[26]      Mr Finch criticises the Second Tribunal Decision on the basis that it means that, although Quinovic was the named respondent in the first Tribunal hearing and the respondent in the District Court appeal, he is now being told Quinovic was not a party all along. The Tribunal in both hearings proceeded on the basis that in substance Mr Finch’s complaint was with Mr Murchison (the landlord). This is consistent with s 85 of the Residential Tenancies Act 1986:

85       Manner in which jurisdiction is to be exercised

(1)Subject to the provisions of this Act and of any regulations made under this Act, the Tribunal shall exercise its jurisdiction in a manner that is most likely to ensure the fair and expeditious resolution of disputes between landlords and tenants of residential premises to which this Act applies.

(2)The Tribunal shall determine each dispute according to the general principles of the law relating to the matter and the substantial merits and justice of the case, but shall not be bound to give effect to strict legal rights or obligations or to legal forms or technicalities.

[27]      In the (original) Tribunal Order, the Tribunal referred to the claim for termination being made by the landlord. The Decision throughout refers to the “landlord’s evidence”. As recorded in the Second Tribunal Decision of 7 July 2021, the Tenancy Agreement is between Mr Finch and Mr Murchison. Only Mr Murchison could be described as the landlord. The reality is the Tribunal and the District Court

treated Quinovic as the representative of the landlord (who as Mr Finch knew) lived overseas.

[28]      What appears to be the opening statement made by the representative of Quinovic at the original Tribunal hearing is in Mr Finch’s materials. It distinguishes between Quinovic as (“Property Management Company”) and the owner. It refers to the owner having managed the property himself in the past. The statement clearly distinguishes between the property manager and the owner.

[29]      For completeness, I note in relation to the settlement recorded by Judge Crosbie that Mr Finch says:

If I had known all the extended terms the [J]udge added, I would have never agreed to settle in the first place.

[30]      If Mr Finch considers that the Judge’s record of the agreed settlement is incorrect, then that is a matter to be taken up with Judge Crosbie.

Conclusion

[31]      A proceeding is an abuse of process if it does not disclosure a reasonably arguable cause of action. I am satisfied that the proceeding is plainly an abuse of the process of the Court on that basis. There is no prospect of a successful judicial review application of any of the decisions referred to in Mr Finch’s materials.

[32]It follows I am satisfied the proceeding should be struck out.

Order

[33]There is an order striking out the proceeding.

Right of appeal

[34]      Rule 5.35B(3) provides that if an order is made on the Court’s own initiative without having heard from the party who filed the proceeding, the order must contain a statement of that person’s right to appeal against the strike out decision.

[35]      Accordingly, Mr Finch is advised that he has the right to appeal against this decision to the Court of Appeal. Any such appeal must be filed within 20 working days after the date of this decision.

Osborne J

Copy to: P Finch, Christchurch (self-represented Plaintiff) Quinovic Property Management Ltd