Kumandan v Complaints Assessment Committee 404

[2019] NZHC 2215

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2018-404-2355

[2019] NZHC 2215

BETWEEN

DELAWER HOOSAIN KUMANDAN

Appellant

AND

COMPLAINTS ASSESSMENT COMMITTEE 404

Respondent

Hearing:

Vacated

Representatives:

The appellant in person

R W Belcher for the respondent

Judgment:

5 September 2019

JUDGMENT OF JAGOSE J

The judgment was delivered by me on 5 September 2019 at 3pm.

Pursuant to Rule 11.5 of the High Court Rules

……………………………… Registrar/Deputy Registrar

Solicitors/Counsel:

Meredith Connell, Auckland And to:

The Appellant

KUMANDAN v COMPLAINTS ASSESSMENT COMMITTEE 404 [2019] NZHC 2215 [5 September 2019]

[1]                 Mr Kumandan brings this appeal against a decision of the Real Estate Agents Disciplinary Tribunal,1 finding him guilty of misconduct in terms of s 73(b) of the Real Estate Agents Act 2008, being conduct constituting “seriously incompetent or seriously negligent real estate agency work”.

[2]                 The Tribunal concluded Mr Kumandan’s exercise of a signing power under a power of attorney – in repeated deliberate imitations of the donor’s signature, and otherwise than in compliance with s 19(3) of the Property Law Act 2007 (which requires the execution to be made in the name of the donor, executed on the donor’s behalf by the donor’s attorney, and “otherwise be executed by the attorney in the same manner as would be required if the attorney were a party to the instrument”) – “self- evident[ly]” qualified as the requisite misconduct.2 This Court previously has acknowledged the Tribunal’s considerable expertise and significant experience to make that assessment in the circumstances of the particular case.3 Other charges against Mr Kumandan – relating to the alleged quality, nature, and manner of his conduct – were dismissed.

[3]                 Mr Kumandan’s appeal appears intended to be brought on the basis the Tribunal’s decision was made without hearing from the donor, who would have confirmed Mr Kumandan’s conduct was endorsed and specifically instructed by the donor. In particular, Mr Kumandan says the Tribunal erred accepting the Committee’s view he was acting to conceal his involvement in the transactions. But the Tribunal expressly disavowed that purpose.4 Rather the Tribunal’s focus was exclusively on Mr Kumandan’s compliance with s 19(3) of the 2007 Act, in the context of the criteria set out in s 73(b) of the 2008 Act, that assessment being peculiarly within the Tribunal’s expertise and experience. The appeal thus lacks merit.

[4]                 Be that as it may, Mr Kumandan is not to appear on his appeal.5 Rather he informally has sought it be adjourned for determination on further papers to be filed in accordance with a timetable to be set. That is because Mr Kumandan has not been

1      Complaints Assessment Committee 404 v Kumandan [2018] NZREADT 51.

2 At [65].

3      Complaints Assessment Committee 20003 v Jhagroo [2014] NZHC 2077 at [49].

4      Complaints Assessment Committee 404 v Kumandan, above n 1, at [62].

5      I therefore excused appearance for the respondent, and vacated today’s fixture.

able to obtain a visitor’s visa to attend today’s hearing from his residence in South Africa. He previously sought adjournment on similar grounds, which Wylie J granted as “a final adjournment” to today, relying on Mr Kumanadan’s assurance, if he could not now attend, “he will withdraw his appeal”.6

[5]                 Notably, Mr Kumandan’s plea then to Wylie J in May 2019 indicated his limited visa application for the purpose only of attending the hearing was subject to a two-year stand-down imposed by Immigration New Zealand, and expiring on 23 July 2019. Thus he sought adjournment to after that date. But the documents now provided by Mr Kumandan in support of his renewed application for adjournment indicate his application for a visitor visa was not received by Immigration New Zealand until 13 June 2019, and was declined on 2 August 2019. None of that was disclosed to this Court on call of the appeal on 6 August 2019, Mr Kumandan instead advising the Court the visa would “be issued imminently”, in time for his attendance at today’s hearing, leading Powell J to direct Mr Kumandan to advise of any inability to attend today’s fixture “as soon as possible”, while noting “the current timetable remains on foot and the fixture will not be adjourned in accordance with previous orders of this Court”.7 But Mr Kumandan then sought ministerial intervention on 20 August 2019, again without apprising the Court of that necessity, only to be told on 3 September 2019 of the four to five month timeframe for such decisions.

[6]                 Rule 7.40(1)(a) of the High Court Rules 2016 (“HCR”) entitles me to determine Mr Kumandan’s informal application in his absence “in any manner that appears just”. Given the merits of his appeal and the history of this proceeding (which includes other substantive non-compliance with timetable orders, although perhaps more forgivable an unrepresented litigant), and in particular the circumstances and foundation for the present ‘one last adjournment’, I see no injustice in dismissing the application. Mr Kumandan made no attempt to achieve his virtual attendance by audio or audio-visual link, either of which is well within the Court’s capacity to facilitate; no further adjournment is necessary to determine the appeal.

6      Minute dated 9 May 2019.

7      Minute dated 6 August 2019.

[7]                 I therefore turn to the Committee’s as-informal application to dismiss the appeal for want of prosecution. HCR 20.12(1) entitles me to dismiss an appeal if I am satisfied the appellant has failed to proceed with it. But, in substance, Mr Kumandan has not failed to proceed with his appeal. He has filed his notice of appeal, paid security for appeal, and filed an (accepted, unorthodox) common bundle. His notice of appeal is sufficiently detailed to constitute submissions. I only have disallowed his attempt to supplement those submissions with more, for later determination on the papers. So I also dismiss the Committee’s informal application.

[8]                 That leaves me with substantive determination of the appeal. For the reasons I have set out at [3], the Tribunal was right to conclude Mr Kumandan’s exercises of the signing power under the power of attorney constituted misconduct. The donor’s views of his conduct are immaterial. The Tribunal is better placed to make the assessment.

Result

[9]The appeal is dismissed.

Costs

[10]            The parties agreed at the outset the appeal was of average complexity, justifying costs category 2. Notwithstanding Mr Kumandan’s non-compliances and non-appearances, only a normal amount of time is reasonable for each step in the appeal. As the unsuccessful party, Mr Kumandan therefore is liable to pay the Committee 2B costs and disbursements as allowed by the Registrar. The sum of security for costs held by the Court may be disbursed to the Committee up to that amount.

—Jagose J