Jung v Thomas - [2013] NZHC 887

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2012-404-1301 [2013] NZHC 887

IN THE MATTER OF an application for Judicial Review

BETWEEN DYLAN DAE BONG JUNG AND YANG HEE SHIN
Applicants

ANDWILLIAM EARLE THOMAS First Respondent

ANDDISPUTES TRIBUNAL Second Respondent

Hearing: 3 December 2012

Appearances: Applicants in person
R A Edwards as Amicus Curiae

Judgment: 26 April 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 26 April 2013 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors: Price Baker Berridge, Auckland: cbaker@pbb.co.nz
Crown Law, Wellington: richard.berkeley@crownlaw.govt.nz

Counsel: R A Edwards, Auckland: raedwards@xtra.co.nz

Copy for: D D B Jung: dylanjung@yahoo.com

JUNG V THOMAS HC AK CIV-2012-404-1301 [26 April 2013]

Introduction

[1] This is an application for judicial review of an order made in the Disputes Tribunal (“Tribunal”) in February 2012, declining to transfer proceedings commenced by the First Respondent (“Mr Thomas”) in September 2011.

[2] Mr Thomas, the Tribunal and the Attorney-General (whom I directed be served) abide the decision of the Court. Given that, I directed that an amicus, Ms R Edwards, be appointed and I thank her for her submissions. A copy of the Tribunal’s record has been filed.

[3] For reasons set out below, I am not satisfied that any ground of review is made out and I decline this application accordingly.

Background

[4] In May 2009 Mr Thomas commenced proceedings against the Applicants (“Jungs”) in the District Court at Auckland, seeking to recover damages of approximately $57,000.

[5] At the time Mr Thomas and the Jungs were the registered proprietors of units in a unit title development in Auckland. In 2005 they commenced proceedings against the Auckland City Council (as it was) and others. Those proceedings were settled in March 2007. The proceedings that Mr Thomas commenced in May 2009 were in respect of repair work that he alleged the Jungs were required to carry out to their unit, following the settlement. The Jungs defended the proceedings. Amongst other things, their case was that Mr Thomas’s proceedings were brought in breach of the settlement agreement.

[6] In August 2011, Mr Thomas abandoned the part of his claim that exceeded

$15,000 and sought an order from the District Court that the proceedings be transferred to the Tribunal. The reasons for his abandonment may be gleaned from the judgment of Judge Joyce to which I refer below. On 30 August 2011 a Registrar at the District Court made the order sought and Mr Thomas commenced proceedings

in the Tribunal by lodging a claim on 1 September 2011.1 In additional material lodged in the Tribunal, Mr Thomas stated that he could no longer to afford to litigate the dispute in District Court.2

[7] On 7 September 2011, the Jungs applied to review the order referred to in [6]

above. The application came before Judge Joyce in December 2011 and on

20 January 2012 Judge Joyce issued a judgment dismissing the application. In his judgment the Judge…

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: [2013] NZHC 887
Decision Date: 26 April 2013

CaseChat Overview and Summary

In Jung v Thomas, the applicants sought judicial review of an order made by the Disputes Tribunal declining to transfer proceedings commenced by Mr. Thomas. The applicants argued that the Tribunal lacked jurisdiction to hear Mr. Thomas's claim for $15,000, and that the Tribunal should transfer the proceedings to the High Court due to the applicants' intended counterclaim for $400,000. The applicants also raised concerns that Mr. Thomas's proceedings were brought in breach of a settlement agreement. The court was required to determine whether the Tribunal's decision to hear Mr. Thomas's claim and decline to transfer the proceedings was subject to judicial review and whether any grounds for review had been made out.

The court found that the Tribunal's decision was subject to review, but only in light of the purpose and content of the Disputes Tribunals Act 1988. The court was not bound to give effect to strict legal rights, obligations, or technicalities in reviewing the Tribunal's decision. The court noted that the Tribunal had not made any decision to hear the applicants' $400,000 claim, and that there was no jurisdiction to transfer Mr. Thomas's proceedings to the High Court. The court also found that the Tribunal had jurisdiction to hear Mr. Thomas's claim for $15,000, and that there was no basis for interfering with the Tribunal's decision to hear the claim or the District Court's decision to dismiss the applicants' application to review the order for transfer. The court dismissed the application for judicial review and made no order as to costs.

Orders