Kwak v Park

[2016] NZHC 2373

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-001559 [2016] NZHC 2373

UNDER

the Weathertight Homes Resolution

Services Act 2006

IN THE MATTER

of an appeal from the Weathertight Homes
Tribunal

BETWEEN

JOONG SONG KWAK AND HYE SOOK KWAK

Appellants

AND

HYUN SU (MARIO) PARK Respondent

Hearing:	On the papers
Appearances:	T R Rainey and J P Wood for Appellants Respondent in person
Judgment:	6 October 2016

JUDGMENT OF WOOLFORD J

This judgment is delivered by me on Thursday, 6 October 2016 at 11.30 am pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:           Rainey Law, Auckland, for Appellants

Copy to:            Respondent

KWAK & Anor v PARK [2016] NZHC 2373 [6 October 2016]

[1]      In a judgment dated 24 March 2016 I allowed an appeal against a decision of the Weathertight Homes Tribunal under the Weathertight Homes Resolution Services Act 2006 (WHRS Act).1

[2]      The respondent, Mr Park, now applies for leave to bring a second appeal against the High Court decision.  The proposed ground of appeal is Mr Park’s belief that one of the producer statements relied on in the Tribunal and High Court was not in fact signed by him and may be a forgery.  The producer statement in question was the subject of a factual finding by the Tribunal which found that, although Mr Park may not personally have filled out the producer statement form, he did sign it.2

Mr Park did not challenge this factual finding during the appeal before me.

[3]      The application for leave is opposed by counsel for Mr Kwak on the basis that  there  is  no  jurisdiction  for  a  further  appeal  to  the  Court  of  Appeal  and accordingly no ability for leave to appeal to be granted.

[4]      Due to an oversight in the Registry, the application for leave was not referred to me until 1 September 2016.  Accordingly, I apologise to Mr Park for the delay in dealing with his application.

Appeals under the WHRS Act

[5]      Section 93 of the WHRS Act gives parties the right to appeal a Tribunal decision to either the District Court or High Court depending on the amount in issue.3  The determination of the appeal is then provided for by s 95 as follows:

95     Determination of appeal

(1)      In its determination of any appeal, the court may do any 1 or more of the following things:

(a)      confirm, modify, or reverse the determination or any part of it:

1      Weathertight Homes Resolution Services Act 2006, s 93.

2      Kwak v Park [2015] NZWHT Auckland 3 at [42].

3      The appeal must be filed in the District Court if the amount in issue does not exceed $200,000 and otherwise in the High Court.

(b)       exercise any of the powers that could have been exercised by the  tribunal  in  relation  to the  claim to  which the appeal relates.

(2)      A determination under subsection (1)—

(a)       has effect as if it were a determination made by the tribunal for the purposes of this Act; and

(b)      is a final determination of the claim.

(3)       Subsection  (2)(b)  does  not  prevent  any proceedings between the claimant and respondent to the adjudication to which the appeal relates from being heard and determined at the same time as the appeal.

[6]      Mr Park has already exercised his right to appeal under s 93 of the WHRS Act.  His appeal has been determined.  By virtue of s 95(2)(b) that determination is “final”.  The effect of this wording was discussed at some length by the Court of Appeal in Osborne v Auckland Council.4   The Court was satisfied “that the specific provisions  of  s  95(2)(b)  of  the  WHRS Act  prevail  over  and  exclude  both  the application of the general right of appeal under s 66 of the Judicature Act and the right to apply for leave to appeal against a decision of the High Court conferred by s 67 of that Act”.5

[7]      It follows that there is no jurisdiction for a further challenge in the Court of

Appeal and no jurisdiction for leave to be granted.

[8]      The application for leave to appeal is declined.

……………………………….

Woolford J

4      Osborne v Auckland Council [2012] NZCA 199, (2012) 21 PRNZ 76.

5 At [58].