McLeod v Schellack

[2019] NZHC 1364

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2019-404-569

[2019] NZHC 1364

UNDER

The Residential Tenancies Act 1986

IN THE MATTER

An appeal against the District Court’s decision to refuse to extend the time for filing an appeal against a decision of the Tenancy Tribunal

BETWEEN

PATRICIA TUI MCLEOD

Appellant

AND

JOSEPH SCHELLACK and CROCKERS PROPERTY MANAGEMENT LIMITED

Respondents

Hearing:

4 and 13 June 2019

Appearances:

Appellant in person supported by Mr A Ransfield as McKenzie Friend

No appearance by respondent

Judgment:

19 June 2019

JUDGMENT OF POWELL J

This judgment was delivered by me on 19 June 2019 at 3 pm pursuant to R 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

MCLEOD v SCHELLACK and Anor [2019] NZHC 1364 [19 June 2019]

[1]                 The appellant,  Patricia  McLeod,  has  appealed  against  a  decision  of Judge Harrison in the District Court at  Auckland  declining  to  extend  leave  for Ms McLeod to appeal a decision of the Tenancy Tribunal to the District Court. The application to Judge Harrison had been necessary as Ms McLeod had not appealed the decision of the Tenancy Tribunal within the time prescribed.

[2]                 Ms McLeod’s appeal did not get off to good start due to Ms McLeod joining various parties to the appeal who clearly should not have been joined. This led, on  14 May 2019, to orders striking out three of the initial five respondents listed in the appeal, with the present respondents having been left in the proceedings simply abiding the decision of the Court and having been granted leave not to appear.

[3]                 At the same time, Ms McLeod was granted leave to apply to join another party to the appeal (being the other party to the Tenancy Tribunal proceedings), but to date no application has been filed, nor was security for costs paid as directed by me on  14 May 2019.

[4]                 Given these circumstances, it seemed sensible before any other party was required to take any steps, to consider whether Ms McLeod had jurisdiction to bring the appeal in the first place. This jurisdictional issue in fact goes to the heart of the decision of Judge Harrison challenged by Ms McLeod in the appeal.  To  this end  Ms McLeod was given the opportunity to file submissions and the hearing was adjourned from 4 June 2019 to 13 June 2019 for Ms McLeod to present her oral submissions before me.

The District Court decision

[5]  Specifically, Judge Harrison concluded that there was no jurisdiction to extend time for the filing of Ms McLeod’s appeal to the District Court after Ms McLeod filed her appeal outside the 10 working days specified in s 117(6) of the Residential Tenancies Act 1986.1 Judge Harrison then applied r 18.4 of the District Court Rules

1      Noting that Judge Harrison referred to s 105(b) of the Residential Tenancies Act 1986 which does not exist when he clearly meant s 117(6) of that Act.

2014 and concluded that this rule did not permit any extension of time and therefore dismissed Ms McLeod’s application.

Discussion

[6]  There is no dispute that Ms McLeod’s appeal was not filed within the 10 days specified by s 117(6) of the Residential Tenancies Act 1986. Rule 18.4 of the District Court Rules relied on by Judge Harrison relevantly provides:

18.4Time for appeal if there is right of appeal

(1)This rule applies if a party has a right of appeal to the court.

(2)An appeal must be brought—

(a)within the specified period if the enactment that confers the right of appeal specifies a period within which the appeal must be brought; or

(b)in every other case, within 20 working days after the decision appealed against is given.

(3)By special leave, the court may extend the time prescribed for appealing if the enactment that confers the right of appeal—

(a)     permits the extension; or

(b)does not limit the time prescribed for bringing the appeal.

[7]                 As s 117(6) provides for a right of appeal to the District Court, r 18.4(1) makes it clear that r 18.4 applies to any appeal brought by Ms McLeod.   This means that     r 18.4(2)(a) then applies because s 117(6) specifies a period within which the appeal must be brought. This means that, pursuant to rule 18.4(3)(a), special leave to extend the time can only be given if the Residential Tenancies Act permits the extension and, as Judge Harrison noted, there is no such provision in the Residential Tenancies Act.

[8]                 It is therefore clear, as indeed Ms McLeod accepts in both her written and oral submissions, there was no error in Judge Harrison’s decision on the statutory instruments before him. In her oral submissions, Ms McLeod requested that I use this Court’s inherent jurisdiction to extend the time to bring the appeal in the District Court. As I noted to Ms McLeod at the hearing, such a submission misunderstands the nature

of the inherent jurisdiction in the face of explicit statutory rules of the type at issue here.

[9]                 Ms McLeod also relies on a Court of Appeal decision to which she was a party, McLeod v Housing New Zealand Limited,2 and contends that issues of public interest are also relevant. Having since looked at the Court of Appeal decision referred to, I conclude that it can provide no assistance to the present case given the extension of time granted by the Court of Appeal in that case did not involve consideration of the same issues or statutory framework as is raised in this appeal. Finally, there is no room to consider the type of public interest considerations Ms McLeod wishes to raise.

[10]              The inevitable conclusion is that Judge Harrison was correct in reaching the conclusion that he had no jurisdiction to extend the time for filing Ms McLeod’s appeal. The present appeal cannot therefore succeed and as a result it must be dismissed.

Decision

[11]The appeal is dismissed.

[12]              As noted in my minute of 14 May 2019 the parties who were successful in exiting the proceedings were given until 28 May 2019 to apply for costs. As no applications were received from any of those parties I make no order for costs. With regard to Joseph Schellack and Crockers Property Management Limited it is noted that, while they were put to the expense of an appearance at the first call of this matter, they have thereafter abided the decision of the Court and have been excused further attendance. In the circumstances, and given the small degree of participation required, I conclude that it is appropriate for the costs of all parties to lie where they fall.

Powell J

2      McLeod v Housing New Zealand Limited [2001] NZCA 405 CA 248/01, 12 December 2001.