Irwin v Neilson

[2012] NZHC 1860

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1421 [2012] NZHC 1860

UNDER  the Weathertight Homes Resolution

Services Act 2006

IN THE MATTER OF     of an Appeal pursuant to Section 93 of the Weathertight Homes Resolution Services Act 2006

BETWEEN  ALLAN FOSTER IRWIN Appellant

ANDBRETT RICHARD NEILSON Respondent

Hearing:         25 July 2012

Counsel:         HJ Woodhouse for Appellant

J Holland for Respondent

Judgment:      27 July 2012

JUDGMENT OF TOOGOOD J

This judgment was delivered by me on 27 July 2012 at 3:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

HJ Woodhouse, Grimshaw, Auckland:  [email protected]

J Holland, Auckland:  [email protected]

IRWIN V NEILSON HC AK CIV-2012-404-1421 [27 July 2012]

[1]      The Respondent (“Mr Neilson”) was an  apprentice labour-only contractor who was engaged by the appellant (“Mr Irwin”) or, by his company Irmac Builders Limited,  which  is  now  in  liquidation,  to  carry  out  general  building  duties, specifically  cladding  and  joinery  installation  on  dwellings,  at  419 Beach  Road, Mairangi Bay, between March 2000 and March 2001.

[2]      The dwellings were leaky buildings and the Auckland Council was named as first respondent in the inevitable proceedings issued before the Weathertight Homes Tribunal under the Weathertight Homes Resolution Services Act 2006 (“the Act”). Irmac was named as third respondent and Mr Irwin was fourth respondent.

[3]      On  the  application  of  the  Council,  Mr Neilson  was  joined  as  eighth respondent but was subsequently removed as a party when it became clear that there was no tenable claim against him.  The Council claimed to have made the joinder application solely on the basis of information provided to it by Mr Irwin.

[4]      On Mr Neilson’s application, the Adjudicator ordered Mr Irwin to pay the sum of $4,564.35 by way of costs, being a sum equivalent to the actual and reasonable  costs  incurred  by  Mr Neilson  in  resisting  liability  and  obtaining  his removal as a party to the Tribunal proceedings.

[5]      Mr Irwin appealed to this Court against that decision.

[6]      After receiving written submissions from counsel and hearing supplementary oral submissions, I reserved my judgment.

[7]      In the course of considering my decision, I referred to s 93 of Act, which provides rights of appeal against determinations of the Tribunal.

[8]      Section 93 reads as follows:

93       Right of appeal

(1)       A party to a claim that has been determined by the tribunal may appeal   on   a   question   of   law   or   fact   that   arises   from   the determination.

(2)      An appeal must be filed in—

(a)      the District Court if the amount at issue does not exceed

$200,000; and

(b)      the High Court if the amount at issue exceeds $200,000.

(3)       For the purposes of subsection (2), the amount at issue in relation to a determination is—

(a)       the amount  of any money required to be  paid under the determination by the person filing the appeal (including any amount determined under section 90(2)); or

(b)       if the appeal relates to a determination in which the tribunal has declined to require payment of any amount of money (or money's worth in terms of section 90(2)) to a claimant, or has required payment of an amount of money (or money's worth in terms of section 90(2)) that is less than the amount claimed by the claimant, the amount claimed unsuccessfully by the claimant.

(4)       A claimant may abandon so much of a claim to which an appeal relates as exceeds $200,000 in order to bring the appeal within the jurisdiction of the District Court.

(5)       If an appeal is commenced by a person who is required to pay money to a party to a claim, the person may bring the appeal within the jurisdiction of the District Court by paying the other person the difference between the amount required to be paid under the determination and $200,000.

(6) Section 182 of the Building Act 2004 does not apply to an appeal under this section.

[9]      Section 93(2) provides an obvious division in appellate jurisdiction between the District Courts and the High Court, relative to the amount at issue.  That division is largely consistent with the jurisdictional limits imposed on the District Court in civil cases.   Although it is somewhat arbitrary, it reflects the fact that this Court should be concerned with the more serious cases only.

[10]     The apparently mandatory wording of sub-section (2) is reinforced by sub- sections (4) and (5).  They provide that claims may be abandoned or satisfied in part by a party wishing to reduce the amount at issue on the appeal to an amount within the jurisdiction of the District Court.

[11]     There is no provision in the legislation for parties or the Courts to waive the jurisdictional limitations applying either to the District Courts or the High Court.

[12]     I raised the question of jurisdiction in a Minute to counsel and they joined me in a telephone conference.

[13]     Mr Woodhouse, as counsel for the appellant, explained that he had considered that the reference in s 93 to “the amount at issue” was a reference to the amount claimed in the proceedings before the Tribunal which, in this case, well-exceeded

$200,000.

[14]     That cannot be right.  The jurisdiction of the High Court is to be determined, according to s 93(2) by the amount “at issue”, that is, at issue on the appeal, not the amount which the claimant hoped to be awarded by the Tribunal.

[15]     The amount at issue here is not sufficient to engage the jurisdiction of this

Court. The appeal is dismissed for want of jurisdiction.

..............................................

Toogood J