Hooper v Bushill
[2024] NZHC 1070
•3 May 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CIV-2023-404-001622
[2024] NZHC 1070
BETWEEN ANDREW STUART HOOPER
Appellant
AND
REBECCA BUSHILL, SARAH BUSHILL, MATHEW ASPIN and COLIN STEWART
BOYER for the estate of Graham Stuart Bushill
Respondents
Hearing: 28 February 2024 Appearances:
Appellant in Person
Paul Murray for the Respondents
Judgment:
3 May 2024
JUDGMENT OF MOORE J
This judgment was delivered by me on 3 May 2024 at 3:00 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar / Deputy Registrar Date:
HOOPER v BUSHILL & ORS [2024] NZHC 1070 [3 May 2024]
Introduction
[1] The genesis of this factually and procedurally complex matter is founded in a long running residential tenancy dispute between the appellant, Mr Hooper and the late Mr Bushill. The dispute went to the Tenancy Tribunal (“the Tribunal”) which, substantially, found in Mr Bushill’s favour. Mr Hooper did not like the result, particularly the award of costs made against him of almost $20,000. He decided to appeal to the District Court. For technical and procedural reasons, largely unconnected to the merits of the case, Mr Hooper failed in the District Court.
[2] This judgment deals with Mr Hooper’s attempts in this Court to reverse the District Court’s determination.
Background
[3] As signalled, the background and procedural history of these proceedings is complex and thus requires a reasonably detailed description to provide context. The following account is largely taken from the Tribunal’s judgment.
[4] In 2016, Mr Hooper entered into a tenancy agreement to rent a residential property in Pakuranga owned by Mr Bushill.
[5] Some months after the tenancy began, problems arose between Mr Hooper and Mr Bushill. This, together with Mr Bushill’s declining health, led him to appoint an agent to manage the property. Inspections were undertaken every three months or so. In April 2018, Mr Bushill died. Probate was granted to his two daughters and son-in- law, the respondents. In November that year, the respondents gave notice to Mr Hooper that the tenancy would terminate in mid-January 2019. Apparently, Mr Bushill’s widow intended to move in. That Mr Hooper and his family were required to find alternative accommodation shortly after the Christmas and New Year period still remains for him a source of resentment.
[6] Shortly before the tenancy expired, the respondents brought a claim in the Tribunal seeking rent arrears. Mr Hooper responded with a counterclaim seeking the repayment of all rent paid over the tenancy. The amount claimed exceeded the
jurisdictional limit of the Tribunal. The proceedings were thus required to be transferred to the District Court. Mr Hooper was required to file a statement of claim. He failed to do so. Six months after the proceedings were transferred, the respondents applied to strike out for non-compliance. A month later the Court directed Mr Hooper to file his papers. He failed to do so. An unless order was made. The statement of claim was eventually filed in July 2020. This was followed by successful settlement discussions which led Mr Hooper to discontinue his claim seeking the repayment of all rent (although other claims relating to aspects of the tenancy remained). At a further judicial conference in August 2020, it was agreed that because Mr Hooper had discontinued his repayment claim, the balance of the sum sought meant the claim could be heard in the Tribunal. Orders were made to that effect and the proceedings were transferred back to the Tribunal for hearing.
[7] The case was allocated a one-day hearing in November 2020. However, Mr Hooper sought and obtained a late adjournment apparently on account of work commitments. The matter was then set down for a fixture five months later on 12 April 2021. Because the April hearing over-ran, it had to be adjourned part-heard. It resumed three months later on 1 July 2021. In total, the hearing occupied three days. The parties were represented by counsel.
[8] Before the Tribunal Mr Hooper brought claims under four heads seeking damages for various alleged failings including: issues arising from failure to maintain the property; the circumstances of the termination; disposal of tenant’s goods; and over-charging for utilities.
[9] The respondents counter-claimed under three heads: rent arrears; failures in delivering up the property in a clean and tidy condition; and damaging the swimming pool.
[10] The Tribunal delivered its 22-page judgment on 11 September 2021. With the exception of the swimming pool claim, it found substantially in the landlords’ favour, awarding damages narrowly surpassing $4,000. It also awarded costs totalling approximately $20,000 which reflected in part Mr Hooper’s contribution to the procedural delays and the meritless nature of some of his claims.
Appeal to the District Court
[11] The Tribunal’s judgment attached some explanatory notes which included advice on a party’s right of appeal. This read:
Right of Appeal
Both the landlord and the tenant can file appeals. You should file appeal at the District Court where the original hearing took place. The cost for an appeal is $200. You must apply within 10 working days after the decision is issued using this Appeal to the District Court form:
justice.govt.nz/tribunals/tenancy/rehearings-appeals.
[12] The Ministry’s link referred to above, which Mr Hooper advised he accessed, states that an appeal must be filed within 10 working days after the decision is issued. It explicitly states that there is no ability to file an appeal out of time.
[13] Mr Hooper filed a detailed notice of appeal in the District Court on 24 September 2021, one day before the appeal period expired. Mr Hooper recorded his address for service as Jennifer Connell & Associates, Barristers and Solicitors of Auckland. Accompanying the notice was payment for the $200 filing fee.
[14] On 21 April 2022, the appeal first came before Judge D C Clark. 1 The parties were represented by the same counsel who had appeared in the Tribunal; namely Mr Duckworth for Mr Hooper and Mr Murray for the respondents. In the Judge’s Minute of that date, he recorded that because the notice of appeal had not been served on the by Mr Hooper on the respondents, the respondents had reasonably assumed that all outstanding matters relating to the tenancy had been concluded. As a consequence, the estate had been distributed. The Judge noted Mr Murray’s submission that any appeal would significantly prejudice the estate because there were few, if any, assets left to fund a defence to the appeal let alone meet an adverse finding as to damages and/or costs. In those circumstances, Mr Murray sought to have the appeal dismissed. The Judge recorded that it would be premature to dismiss the appeal without hearing further submissions, notwithstanding any prejudice which may have occurred. However, he recorded that leave to appeal was necessary and that the application could be dealt with at the same time as the substantive appeal. He made timetabling orders
1 Hooper v Bushill DC Auckland CIV-2022-004-000291, 21 April 2022 at [3].
requiring the application to extend time to be filed within five working days and made other ancillary orders, including security for costs.
[15] On 29 April 2022, Mr Hooper filed the application for leave to extend time. The application stated that Mr Hooper had, through counsel, filed the notice of appeal on 24 September 2021 which relevantly stated that he had been;
…advised that the Notice of Appeal was served on 30 March 2022 when the transcripts of the Tenancy Tribunal hearings were finally made available to counsel. I understand those needed to be provided under DCR 18.15.
[16] Mr Hooper claimed that without the transcript, the appeal could not have been progressed, nor could meaningful directions be timetabled. He said that the delays had been caused by the lockdowns experienced in Auckland and the impact this had on the operation of the Courts. Mr Hooper claimed that Mr Murray was aware of the appeal in November 2021 when he was accidentally copied into an email from the District Court. He asserted that the appeal was filed in time and that he would suffer serious prejudice if it was not heard and leave was not granted.
[17] Mr Murray filed a notice of opposition which set out the respondents’ grounds as follows:
(a)Rule 18.4(2) requires an appeal to be brought within the specified period in the Residential Tenancies Act 1986. Under [r] 18.6, an appeal is brought when the Notice of Appeal is filed in Court and served on the respondent. Section 117 of the Residential Tenancies Act 1986 provides that any appeal must be brought within 10 working days of the date of the decision.
(b)The Notice of Appeal was not served on the respondents within 10 working days of the date of decision appealed against.
(c)The failure by the appellant to serve the Notice of Appeal within time has significantly prejudiced the estate’s ability to respond to the appeal.
(d)The delay in the Notice of Appeal being served caused actual hardship and significant prejudice to the respondent.
(e)The appeal has no merit.
[18] The notice of opposition also annexed an affidavit from one of the respondents, Mr Aspin, who was Mr Bushill’s son-in-law and one of the executors of the deceased
estate. He deposed that when the Tribunal proceeding commenced, the executors resolved to withhold funds from distribution until the proceeding’s final determination. At that time it was anticipated that the proceeding would take just a few months to be determined. Mr Aspin deposed that as a result of numerous delays caused by Mr Hooper and numerous adjournments, the proceeding took nearly three years to conclude. The delay caused difficulties and hardship to the beneficiaries who were unable to receive their total distribution.
[19] Mr Aspin said that despite the Tribunal issuing its decision on 11 September 2021, the executors did not make an immediate distribution. They agreed to wait until the appeal period had expired. Having not received any notice of appeal, the executors instructed their lawyers to commence winding up the estate and final distributions were made to the beneficiaries. A small contingency was retained pending the finalisation of tax returns and miscellaneous expenses. However, the sum retained was insufficient to meet the legal costs of the appeal.
[20] On 20 September 2022, the date scheduled for the hearing of the leave application and appeal, the Judge expressed his displeasure that as a consequence of “significant non-compliance … in respect of the timetabling”, he had no option but to vacate the fixture.2 He made timetabling directions regarding the filing of submissions directing that the submissions should focus on the issue of whether an appeal which has been filed but not served satisfies the provisions of the Residential Tenancies Act 1986 (“the RTA”) and the District Court Rules 2014 in respect of the filing of appeals. He noted that he would deal with the application for leave to appeal on the papers following receipt of counsels’ submissions.
District Court decisions
[21] The present appeal relates to two separate decisions by Judge Clark relating to the same subject matter arising out of the Tribunal’s decision. The first is the Judge’s substantive judgment delivered on 15 November 2022 under CIV-2022-004-00291 (“CIV 0291”). This file appears to have been created in 2022 by the Auckland District Court’s registry. It is a duplicate of what would appear to be the original District Court
2 Hooper v Bushill DC Auckland CIV-2022-004-000291, 20 September 2022.
file created when Mr Hooper first commenced his appeal in 2021. The original file was created under CIV-2021-092-003772 (“CIV 3772”). It is not apparent on the material before me when or for what reason the second file, CIV 0291, was created. It may have been created because the original file, CIV 3772, had been misplaced during COVID and a new file needed to be put together for the purposes of the appeal. In any event, it was the 2022 CIV 0291 duplicate file which first came before Judge Clark.
[22] On 15 November 2022, the Judge delivered his fully reasoned, reserved judgment (“the November 2022 decision”).3 A discussion of the judgment follows.
The November 2022 decision (CIV 0291)
[23] After setting out the background, the Judge referred to s 117 of the RTA and, specifically, s 117(6) which prescribes the requirement that any notice of appeal is to be filed within 10 working days after the date of the decision. He referred to the grounds relied on by Mr Hooper that because the transcript of the proceedings was not available on 30 March 2022, the appeal could not be progressed in any meaningful way. He then noted that Mr Duckworth had departed from that assertion. Instead, he had argued that s 117(9) of the RTA placed no obligation on the appellant to serve the notice of appeal. Rather, he submitted, that was a function required to be undertaken by the District Court and it was the District Court, not Mr Hooper, which had failed in its statutory duty to serve the notice within the 10-working day period.
[24] After referring to Court of Appeal authority, the Judge determined that “giving notice” meant that service was necessary because the statute required it, and there was no provision under the RTA to permit an extension.4 He determined that s 117 of the RTA and rr 18.4 and 18.6 of the District Court Rules must be read in conjunction with each other. So he determined that for an appeal to be brought, it must comply with the timeframe imposed by the underlying enactment and the relevant Rules. An extension of time to appeal would only be permitted when the underlying enactment permitted
3 Hooper v Bushill [2022] NZDC 21423.
4 At [17], citing Attorney-General v Howard [20100] NZCA 58, [2011] 1 NZLR 58.
it or if the underlying enactment did not provide for a maximum period for the appeal. In such a case, the Court could extend time under the District Court Rules.
[25] The Judge determined that because there is a maximum time of 10 working days to file and serve the notice of appeal, Mr Hooper had failed to meet the requirements of s 117(6) of the RTA and rr 18.4 and 18.6 of the District Court Rules. He noted that the District Court Rules were not inconsistent with s 117(9) of the RTA, because that reflects the process the Court is required to follow in advising the respondents that an appeal had been filed. The appellants had failed to do this and, in the circumstances, the Judge concluded that he had no jurisdiction to hear the appeal because the law did not permit him to grant any extension. It followed that the application for leave to extend time was declined and the appeal struck out.
[26]However, this was not the end of the matter for the reasons which follow.
The July 2023 decision (CIV 3772)
[27] On 4 July 2023, the matter came before Judge Clark again.5 Mr Hooper was represented by Mr Duckworth. Only one of the respondents, Mr Aspin, appeared and was represented by counsel. The circumstances by which the file came before the Court was captured by the Judge in the opening paragraphs of his oral judgment. The short judgment is reproduced in full below:6
The matters come before me in today’s list. The reason for this (although as to why remains unclear), is duplicate files but different CIV numbers were allocated by the registry for the same appeal from the Tenancy Tribunal.
In my reserved judgment of 15 November 2022 I dismissed the appeal on the basis the notice of appeal had not been served on the respondent parties within time. Because the appeal was dismissed on a technicality, it was unnecessary for me to consider the substantive issues underlying the appeal.
Mr Duckworth raised concerns that there may have been issues I needed to consider on this (duplicate) file. I have read the file and it is [a] mirror copy of the registry file CIV-2022-004-29 under which I gave judgment. There are no matters on this file would have dissuaded me to reach a different conclusion in my judgment of 15 November 2022. I am fortified in this view because there was only one Notice of Appeal filed (but not served), the consequences of which were dealt with in my judgment.
5 Hooper v Bushill [2023] NZDC 14037.
6 At [1]–[5].
In the circumstances consistent with my findings of my judgment of 15 November 2022, the proceedings under this file – CIV-2021-092-3772 – should also be dismissed. I do so accordingly.
As the matter is being raised as a result of what appears to be a registry error, I make no order as to cost.
Bankruptcy proceedings
[28] Since the publication of these judgments the respondents have commenced bankruptcy proceedings in this Court to recover the $20,000 awarded to them in costs. I was advised by Mr Murray that Mr Hooper has paid that sum into a solicitor’s trust account with the bankruptcy proceedings adjourned pending the determination of these appeals.
The appeals in this Court
[29] On 30 July 2023 Mr Hooper filed a notice of appeal in this Court in respect of the November 2022 and July 2023 judgments.
[30]Mr Murray gave notice of his opposition on the following grounds:
(a)The appellant requires an extension of time to appeal both the November judgment and the July judgment on the grounds that:
i.Any appeal of the November judgment was to be filed and served by 14 December 2022.
ii.Any appeal of the July judgment was to be filed and served by 2 August 2023.
iii.The application was only sent to the respondents by email on 8 August 2023.
[31] He claimed that no reasons had been provided to explain the failure and that such failure had prejudiced the respondents’ ability to respond to the appeals on the grounds that:
(a)Graham Bushill’s estate had been wound up;
(b)there were no funds available in the estate;
(c)the merits have no appeal;
(d)the appeals are not limited to questions of law (as required by s 119 of the RTA); and
(e)no purpose would be served by allowing an extension of time to bring the appeal.
[32] On 5 September 2023, the applications for leave to appeal Judge Clark’s decisions were first called in this Court. Robinson J made timetabling orders requiring Mr Hooper to file the decisions of the Tribunal and the District Court, together with an affidavit in support.7 He also required Mr Hooper to explain the reasons for the significant delay in taking steps to appeal the November 2022 decision and his understanding of the circumstances giving rise to the July 2023 judgment.
[33] The matter came before Robinson J again on 3 October 2023. In his Minute recording that appearance, Robinson J noted that on 30 July 2023, Mr Hooper had filed in this Court his notice of appeal against the July 2023 judgment and an application for leave to appeal out of time the November 2022 judgment.8 He noted that although Mr Hooper had filed his notice of appeal of the July 2023 judgment within the 20-working day appeal period (that being by 2 August 2023), Mr Murray claimed they were not served until 8 August 2023 thus requiring Mr Hooper to obtain leave to appeal out of time.
[34] Robinson J directed that the applications for leave to appeal out of time and the appeals against the November 2022 and July 2023 judgments were to be heard together. Timetabling directions were made to facilitate that course.
7 Hooper v Bushill HC Auckland CIV-2023-404-1622, 5 September 2023.
8 Hooper v Bushill HC Auckland CIV-2023-404-1622, 4 October 2023.
[35] Robinson J directed that the narrow questions of law would be whether the Judge was correct to find that:9
(a)the appeal to the District Court had not been brought within the 10 working day period provided for in s 117(6) because the respondents had not been served within that time; and
(b)the District Court was unable to extend the time for bringing the appeal.
[36] There are therefore two separate applications for leave to appeal out of time relating to both the November 2022 judgment and the July 2023 judgment.
[37] However, before I can consider those appeals, I must determine Mr Hooper’s application in this Court for leave to appeal the November 2022 judgment and whether he is required to obtain leave to appeal the July 2023 judgment and if so, whether leave should be granted.
[38] Mr Hooper accepts, through the filing of his application in this Court of 30 July 2023, that he requires leave to appeal the November 2022 judgment. However, Mr Murray submitted that although Mr Hooper filed his notice of appeal against the July 2023 judgment within the 20-working day appeal period (that being 2 August 2023), he did not “serve” it until 8 August 2023. In that case, Mr Murray contends that Mr Hooper also requires leave to pursue that appeal out of time.
[39] Naturally, if this Court does not grant leave as sought and determines that in respect of the July 2023 judgment, leave is also required, but is declined, it will be unnecessary to consider the appeals against Judge Clark’s two decisions.
[40]And so, it is to the questions of leave in this Court that I turn to first.
9 At [10].
Discussion and analysis
The High Court Rules
[41] The High Court Rules 2016 (“the Rules”) prescribe the time limits within which appeals may be brought.
[42]Rule 20.4 relevantly provides:
20.4 Time for appeal if there is right of appeal
(1)This rule applies if a party has a right of appeal to the court.
(2)An appeal must be brought—
(a)within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or
(b)in every other case, within 20 working days after the decision appealed against is given.
(3)By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—
(a)permits the extension; or
(b)does not limit the time prescribed for bringing the appeal.
…
[43] So, pursuant to r 20.4(3), if an appeal is not brought within that time, the Court may extend the time by special leave if the enactment that confers the right of appeal permits the extension or does not limit the time prescribed for bringing the appeal.
[44]Rule 20.6 prescribes when an appeal “is brought”. It provides:
20.6 When appeal brought
(1)An appeal is brought when the appellant—
(a)files a notice of appeal in the court; and
(b)files a copy of the notice of appeal in the administrative office; and
(c)serves a copy of the notice of appeal on every other party directly affected by the appeal.
(2)Service at the address for service stated in the proceedings to which the appeal relates is sufficient service for the purposes of subclause (1).
[45] Thus, in order for this Court to grant special leave to extend the time for appeal, the enactment which confers the right of appeal, here the District Court Rules, I must either permit the extension or not limit the time prescribed for bringing the appeal.
Principles governing extensions of time
[46] The Supreme Court in Almond v Read observed that the ultimate question when considering the exercise of the discretion to extend time is what the interest of justice require.10 Such an enquiry necessitates an assessment of the particular circumstances of the case and the interests of the parties. The Court described the relevant principles as follows:11
The ultimate question when considering the exercise of the discretion to extend time … is what the interest of justice requires. That necessitates an assessment of the particular circumstances of the case. Factors which are likely to require consideration include:
(a)The length of the delay. Clearly, the time period between the expiry of the appeal date and the filing of the application to extend time is relevant. But in a case where there has been a slip up and the appeal date has been inadvertently missed, how quickly the applicant sought to rectify the mistake after learning of it will be relevant. Obviously, the longer the delay, the more the applicant will be seeking an “indulgence” from the court and the stronger case for an extension will need to be.
(b)The reasons for the delay. It will be particularly relevant to know whether the delay resulted from a deliberate decision not to proceed, by a change of mind, from indecision, or from error or inadvertence. If from a change of mind or from indecision, there is less justification for an extension than where the delay results from error in advertence, particularly if understandable.
(c)The conduct of the parties, particularly of the applicant. For example, a history of non-co-operation and/or delay by an applicant may be relevant.
(d)Any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome. Again, the greater the prejudice, the stronger the case will have to be to justify the grant of an extension of time. Where there is significant delay coupled with significant
10 Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801 at [38]
11 At [38].
prejudice, it may well be appropriate to refuse leave even though the appeal appears to be strongly arguable.
(e)The significance of the issues raised by the proposed appeal, both to the parties and more generally. If there is a public interest in the issues, the case for an extension is likely to be stronger than if there is no such interest.
(footnotes omitted)
[47] Finally, for completeness, I note that in respect of the substantive appeals, that is the appeals against the District Court Judge’s decision, appeals under the RTA to the High Court are permitted only on points of law.12 In the context of this case, s 119 does not operate as a bar to considering the correctness of the District Court judgments. Both appeals engage the same legal principles and more particularly, whether the Judge’s legal analysis was correct.
[48] I next turn to whether Mr Hooper should be granted leave to extend time in this Court; first in relation to the November 2022 judgment and then the July 2023 judgment by reference to the Almond considerations.
The November 2022 judgment
(a)Length and reasons for delay
[49] The first consideration is the length of the delay and the reasons for it. Here, the delay is approximately 10 months following the judgment. That is a significant delay which requires a cogent and compelling explanation.
[50] Mr Hooper set out the reasons for the delay in his affidavit filed in this Court. Relevantly it reads:
21.Judge Clark apparently issued a reserved judgment on November 15, 2022. I note that Mr James Duckworth represented me during that period, but it seems he was not present on that date and has no knowledge of this hearing.
22.I was entirely unaware of the reserved judgment issued on November 15, 2022, and was awaiting our next court date to submit emails from the Deputy Registrar and a print out from the Tenancy Tribunal website, which meticulously outlines the appeal procedure.
12 Residential Tenancies Act, s 119.
23.On June 7, 2023, a debt collector arrived at my residence, threatening bankruptcy and serving various documents, including the aforementioned reserved judgment. The copy I received was neither sealed nor signed. This marked my first encounter with the judgment. I promptly contacted the courts, only to learn that an appeal conference was scheduled for June 19, 2023.
24.Upon reviewing the information, we discovered a court had created two separate files/CIV numbers for the same appeal. The original file was designed CIV-2021-092-003772, while a second file was established, under which Judge Clark had issued his reserved judgment, labelled CIV-2022-004-000291.
25.The concern over the existence of two files for the same appeal was brought to the court’s attention. Consequently, the pending date of June 19, 2023, was cancelled, and the matter was referred back to Judge Clark on July 4, 2023. Judge Clark referred to the two files as “duplicate files” and indicated they were mirrors of each other.
...
29.Having two files was concerning enough, but having two files that are quoted as being duplicates or mirrors when there are such clear differences raises more than a few questions. This discrepancy potentially explains why Judge Clark reprimanded us, as I believe our submissions were filed under the correct 2021 file, which was not the file before him.
…
32.In conclusion, it is important to address The Landlord/Trust’s claim that all funds had been distributed, and any court action would prejudice them. This case has been challenging for both parties, but they have benefited from the rent paid for a misrepresented and substandard 6+ bedroom house.
33.I too have incurred significant costs and based on the order were also partly successful in my claim. As noted … it would have been unfair for me to continue without representation in a case that was brought against him and looking at the consistent errors, procedural problems and delays it seems as if I am being held accountable for things that are outside of my control.
34.In the minutes of Robinson J of the High Court, 5th September 2023 I am asked why there was a significant delay when appealing the judge clarks decision on the CIV-2022 case. I was not aware of the order, A comment from the courts indicated that it may have been posted to [residential tenancy] address. An email may have been sent to Mr Duckworth but its probable that with the confusion around the CIV numbers it was missed by him and not handed onto me.
[51] The first difficulty facing Mr Hooper is that the District Court’s email under which the November 2022 judgment was issued was addressed to both parties’ solicitors and counsel. In the case of Mr Hooper, it was sent to both Ms Connell, Mr Hooper’s solicitor on the record and to Mr Duckworth, his counsel at the hearing. In those circumstances, and in the absence of evidence from either Ms Connell or Mr Duckworth, it is difficult to accept it was “missed” by both of Mr Hooper’s legal representatives. That would have required both Ms Connell and Mr Duckworth, who were separately emailed by the Court, not to have either passed the judgment on to Mr Hooper or at the very least alerted him to its existence. In the circumstances, the coincidence of both lawyers failing so significantly in their duties to their client in the same fashion seems most unlikely. This makes it difficult to assess whether the 10 month delay resulted from a deliberate decision not to proceed followed by a change of mind or from indecision or from error or inadvertence.
[52] In the circumstances this is a significant delay, the explanation for which is inadequate.
(b)Conduct of the parties
[53] The next consideration is the conduct of the parties. Although Mr Hooper professes otherwise, the lengthy history of these proceedings does not reflect well on him. The Tribunal’s decision itself reveals conduct on the part of Mr Hooper which materially added to the delay in determining the dispute. Proceedings before the Tribunal are intended to be resolved with a minimum of complexity and delay. These proceedings took some two-and-a-half years to resolve in the Tribunal. The majority of impediments to a speedier resolution, although I accept not all, lie with Mr Hooper.
[54] There is also the question of whether the Judge, in fact, made two separate, substantive decisions in November 2022 and July 2023, each of which provides an independent pathway to appeal. Plainly the November 2022 judgment involved a substantive de novo decision which provided a potential appellate pathway. However, the July 2023 judgment appears to have been considered by the Judge as necessary only in order to regularise an internal administrative step following the Registry creating a duplicate file. In the July 2023 judgment he referred to it as a “registry
error”, describing the duplicate file as “a mirror copy” of the original. In these circumstances the July 2023 judgment should not be seen or treated as a separate and independent judicial act which crystallised a fresh pathway to appeal.
[55] On this point Mr Hooper claims there are material differences between the two files. In his affidavit he described it in this way:
28.It became abundantly evident that the CIV-2021-092-003772 and the CIV-2022-004-000291 files were markedly different. The 2021 file contained Minutes from other judges, nearly all of our submissions and evidence. In contrast, the 2022 file predominantly consisted of submissions from Mr Murray, the lawyer for the other party, with only a few documents from us.
29.Having two files was concerning enough, but having two files that are quoted as being duplicates or mirrors when there are such clear differences raises more than a few questions. This discrepancy potentially explains why Judge Clark reprimanded us, as I believe our submissions were filed under the correct 2021 file, which was not the file before him.
[56] Apart from claiming that the two files were materially different, Mr Hooper does not specify how those differences translate to a material unfairness or, more particularly, how the November 2022 judgment might have been different had it also contained the material he discovered on the 2021 file. Whatever any differences there may have been, a reading of the November 2022 judgment plainly indicates that the submissions of both counsel were taken into account by Judge Clark. Mr Hooper has not pointed to any materially relevant documentation on the 2021 file which might have resulted in a different decision.
(c)Prejudice or hardship to the respondents
[57] Relatedly, the delays in bringing the appeal against the November 2022 judgment will place the respondents in an invidious position in the event leave is granted. This aspect has already been discussed. The fact of the matter is that the respondents changed their position in reliance on their assumption that, there having been no appeal filed, the proceedings were at an end and the estate could be wound up after all final distributions made.
[58] That was a reasonable assumption, and I am satisfied that the respondents acted in good faith in doing so. In that regard, I consider it noteworthy that the process of finally winding up the estate was delayed for nearly three years after the proceedings before the Tribunal were commenced in January 2019.
[59]As noted, the respondent estate now has no available funds to meet legal costs.
[60] Furthermore, there needs to be an end to this litigation. As previously noted, proceedings before the Tribunal are intended and designed to be swift and relatively free of procedural complexity, no doubt because it is important and highly desirable that disputes between tenants and landlords are resolved expeditiously and are not bogged down or frustrated by procedural skirmishes rather than focussed on the relative merits.
(d)Does the appeal raise any issue of public importance?
[61] There is no issue of public importance engaged in this case and neither has Mr Hooper attempted to persuade the Court otherwise.
[62] While I do not doubt the importance of this case to Mr Hooper himself, that is not the test. This is not a case where there is divergent appellate authority or where the Court’s interpretation is likely to affect the rights of citizens in other cases. There is no question of general or public importance engaged.
(e)Merits of the appeal
[63] As the Supreme Court observed in Almond v Reed, any lack of merit in a proposed appeal is likely to be a decisive consideration where there is an obvious problem with the proposed appeal.13 The present case fits into that category in my view for two reasons.
[64] First, the Judge’s reasoning is not only both cogent and persuasive but is correct in law in my view. His interpretation of s 117 of the RTA and rr 18.4 and 18.6 of the District Court Rules is correct. The Rules stipulate that both filing and service must
13 Almond v Reed, above n 12, at [31].
be completed. That conclusion is supported by two decisions of this Court in
McLeod v Shellack14 and Lenihan v Maehl.15
[65] Secondly, the Judge had no jurisdiction to hear the appeal because by operation of law, he was unable to grant any extension. Had he done so, any appeal brought by the respondents would have inevitably been successful.
The July 2023 judgment
[66] The same analysis in respect of Judge Clark’s oral judgment of 4 July 2023 may be dealt with in reasonably short order.
[67] As previously noted, under r 20.6 of the Rules, an appeal is “brought” when the notice of appeal is filed and served. Under r 20.4, any appeal of the July 2023 judgment was required to be brought by 2 August 2023. However, because the notice of appeal was not served by that time, the appellant requires an extension of time to appeal, despite the delay being just six days.
[68] In my view, it is necessary to adopt a more pragmatic and not unduly technical approach to this aspect of the appeal. This reflects the essential nature of the Judge’s July 2023 decision. As already discussed, it was not a “new” substantive decision. It seems likely that the matter was listed before the Judge because the Registry considered he needed to determine what to do with this file.
[69] Responding to Mr Duckworth’s concern, the Judge expressly turned his mind to whether there were any “matters” on the file which might have persuaded him to reach a different decision from his November 2022 judgment. That was the reason and purpose behind him reviewing the file. He found nothing that might have resulted in a different conclusion. Significantly, in both the Judge’s view and my own, there was only one Notice of Appeal (unserved). This reinforces my conclusion that the
14 McLeod v Shellack [2019] NZHC 1364.
15 Lenihan v Maehl [2018] NZHC 2989.
purpose of the July 2023 judgment was simply to regularise an administrative anomaly caused by the Registry creating a second file.
[70] For the reasons already given, I do not consider the Judge’s comments, including purporting to dismiss the CIV 3772 proceedings, amounted to a fresh decision which would permit Mr Hooper to advance a second appeal on essentially the same grounds, which I have already considered and dismissed when considering the November 2022 judgment.
Conclusion and result
[71] For these reasons, I am satisfied that both applications for extending time to appeal should be and are accordingly dismissed.
Costs
[72] The respondents seek increased costs against Mr Hooper under r 14.6(3) of the Rules on the grounds that he has contributed unnecessarily to the time and expense of the proceeding by:
(a)failing to comply with these rules or with a direction of the Court; and/or
(b)taking or pursuing an unnecessary step or argument that lacks merit.
[73] I direct that the respondents are to file and serve their memorandum as to costs within 20 working days of the date of this judgment. The appellant is to file and serve his submissions on costs in response no later than 15 working days thereafter. No memorandum is to exceed three pages (exclusive of appendices).
[74]I shall then consider the question of costs on the papers.
Moore J
Solicitors:
Mr Murray, Auckland
Copy to:
The Appellant
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