He v Bai

[2014] NZHC 627

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2013-404-004931 [2014] NZHC 627

BETWEEN  JUN HE Appellant

ANDCYNTHIA BAI Respondent

Hearing:                   27 March 2014

Appearances:           Appellant in person

No appearance for Respondent

Judgment:                1 April 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 1 April 2014 at 3.00 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

HE v BAI [2014] NZHC 627 [1 April 2014]

[1]      In a decision delivered on 23 October 2013 Judge Wilson QC allowed Jun He’s appeal from a Tenancy Tribunal decision.1    Judge Wilson directed a rehearing before a differently constituted Tenancy Tribunal.  Mr He now appeals that decision on the ground that the case should have been remitted to the originally constituted Tribunal because:

… some policies for the Tenancy Tribunal have been changed after the case submitted to the Tenancy Tribunal.  So if a new constituted Tenancy Tribunal is established to process the case, the new policies will be introduced.  That will cause both of the parties of this case to lose some rights.  It will not be fair to both of the parties of this case.  The case should be fitted to the old Tenancy Tribunal policies.

[2]      Judge Wilson dealt with the appeal under s 117 and 118 of the Residential Tenancies Act 1986.  Under s 118 the Judge had the power to order a rehearing on such terms as he thought fit.   The Judge’s direction that the rehearing take place before a differently constituted Tenancy Tribunal was an exercise of his discretion under s 118(1)(a).  In appealing an exercise of discretion Mr He needs to show that the Judge took some irrelevant matter into account, failed to take a relevant matter into account, applied a wrong principle of law or was otherwise plainly wrong.

[3]      Mr He was under the impression that there was no cost to him in bringing the appeal from the Tenancy Tribunal to the District Court, but that, because of some change in the rules, if the matter were remitted to the Tenancy Tribunal and he were to bring an appeal from that second decision there would be a significant filing fee to be paid.  So far as I have been able to ascertain fee the filing fee under the District Court Fees Regulations 2009 for an initiating document (which includes a notice of appeal) has been $200 since July 2011.   But even if there had been a change this would not constitute a ground on which Mr He could successfully appeal Judge Wilson’s decision.

[4]      Judge Wilson properly took into account all the relevant matters.  The filing fee on any future appeal is not a matter relevant to the case he was determining.

[5]      Mr  He  also  seemed  to  be  under  the  impression  that  it  would  make  a difference  if  the  constitution  of  the Tenancy Tribunal  to  which  the  matter  was

1      District Court Waitakere CIV-2003-090-000455, 23 October 2013.

remitted was the same rather than a differently constituted Tenancy Tribunal as the Judge had directed.   I tried to explain to Mr He that the make-up of the Tenancy Tribunal could not make any difference.  I do not think he fully accepted that point but it is so.

[6]      There is no ground on which Mr He can successfully appeal the Judge’s

direction that the matter be remitted to be reheard before a differently constituted

Tenancy Tribunal. The appeal is dismissed.

P Courtney J