Kumandan v Real Estate Agents Authority - [2014] NZCA 227

IN THE COURT OF APPEAL OF NEW ZEALAND

CA508/2013
[2014] NZCA 227

BETWEEN	DELAWER HOOSAIN KUMANDAN Appellant
AND	REAL ESTATE AGENTS AUTHORITY Respondent

Court:

Randerson, White and French JJ

Counsel:

Appellant in Person
J MacGibbon for Respondent

Judgment:

(On the papers)

5 June 2014 at 2:30 pm

JUDGMENT OF THE COURT

AThe application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 is dismissed.
B The appeal is deemed to be abandoned.
CThe appellant must pay costs to the respondent as for a standard application on a Band A basis with usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

On 17 April 2013 the Real Estate Agents Disciplinary Tribunal suspended the appellant’s licence for a period of 12 months from that date.[1] The appellant then appealed to the High Court but his appeal was dismissed by Woolford J on 28 June 2013.[2]
[1]Real Estate Agents Authority v Kumandan [2012] NZ READT 32.
[2]Kumandan v Real Estate Agents Authority [2013] NZHC 1528.
The appellant filed an appeal against the High Court’s decision on 26 July 2013. Any appeal to this Court is confined to errors of law.[3]
[3]Section 120 of the Real Estate Agents Act 2008.
By letter of 31 July 2013 the appellant was advised of the requirements of r 43 of the Court of Appeal (Civil) Rules 2005 in relation to the filing of a case on appeal and applying for a hearing date. He was also advised on the same date that security for costs had been fixed by the Registrar in the sum of $5,880.
It is unnecessary to detail the communications between the Registry and the appellant thereafter. It is sufficient to state that the appellant was informed that the appeal was deemed to be abandoned as at 29 October 2013. However, due to an error made by the Registry the appellant was wrongly informed about the date by which he must file any application for an extension of time under r 43(2). Accordingly, Randerson J directed by minute of 25 February 2014 that the date by which the appellant’s application for an extension of time must be filed be extended until the date it was actually filed, that is on 21 February 2014.
Submissions have now been received by both parties who are agreed that the application for an extension of time may be dealt with on the papers.

Submissions by the appellant

The appellant essentially submits that he is unable to pay the amount required for security for costs and seeks an extension of 90 days to enable that sum to be paid; he is not responsible for the delay up and until his application for an extension of time was filed; there are important questions of law which ought to be determined on appeal not only for his own benefit but also for the benefit of others involved in the real estate industry; and he wishes to pursue his…

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: [2014] NZCA 227
Decision Date: 5 June 2014 at 2:30 pm

CaseChat Overview and Summary

The case of Kumandan v Real Estate Agents Authority involves an appeal by the appellant, Delawer Hoosain Kumandan, against a decision of the Real Estate Agents Disciplinary Tribunal which had suspended his licence. The appeal was dismissed by the High Court, and the appellant then sought leave to appeal to the Court of Appeal of New Zealand. The respondent, the Real Estate Agents Authority, opposed the application for an extension of time. The Court of Appeal was required to decide whether to grant the appellant an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 and whether to permit the appeal to proceed.

The court found that the appellant had not complied with the procedural requirements of the Court of Appeal rules, including the failure to seek a hearing date and the non-payment of security for costs. Furthermore, the court noted that the appellant had not identified any legal grounds upon which his appeal could be based, as the High Court's decision was essentially factual and involved a discretionary exercise. Given these circumstances, the Court of Appeal dismissed the appellant's application for an extension of time and deemed the appeal to be abandoned. The court also ordered the appellant to pay costs to the respondent.

The final orders of the court were that the application for an extension of time under r 43 of the Court of Appeal (Civil) Rules 2005 was dismissed, the appeal was deemed to be abandoned, and the appellant was ordered to pay costs to the respondent as for a standard application on a Band A basis with usual disbursements.

Orders