Memelink v Body Corporate 378945 - [2020] NZCA 575

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA518/2020
[2020] NZCA 575

BETWEEN	HARRY MEMELINK AS TRUSTEE OF LINK TRUST NO.1 Applicant
AND	BODY CORPORATE 378945 Respondent

Court:	Gilbert and Collins JJ
Counsel:	D G O Livingston for Applicant D G Dewar for Respondent
Judgment: (On the papers)	18 November 2020 at 3 pm

JUDGMENT OF THE COURT

AThe application for leave to appeal is declined.
BThe applicant must pay costs to the respondent for a standard application on a band A basis and any usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Gilbert J)

This is an application for special leave to appeal against a decision of the High Court dismissing an appeal against a decision of the District Court striking out an appeal from an order made by the Tenancy Tribunal (the Tribunal). The appeal was struck out on the basis that the notice of appeal was filed outside the statutory time limit and there was no power to extend the time limit.
The applicant, Harry Memelink, is one of the trustees of Link Trust No.1 which owns a unit in the Grand Theatre Apartments in Lower Hutt. In July 2018, the respondent body corporate lodged a claim in the Tenancy Tribunal for unpaid operating expenses, interest and costs. The operating expenses were paid prior to the claim being determined. On 7 August 2019, the Tribunal ordered Mr Memelink and the other trustee, Lynx Trustees Ltd (now in liquidation), to pay the sum of $9,694.35 comprising interest and costs.[1]
[1]Body Corporate 378945 v Lynx Trustees Ltd [2019] NZTT Hutt Valley 9009301 [Tribunal decision].
In the meantime, on 28 August 2018, Mr Memelink was adjudicated bankrupt. The respondent filed a proof of debt in Mr Memelink’s bankruptcy for the amount awarded. The Official Assignee admitted the proof in the sum of $7,210.35 but not for the balance of $2,484 which related to costs incurred after the date of the bankruptcy. Mr Memelink filed proceedings in the High Court challenging various decisions of the Official Assignee, including the decision to admit the respondent’s proof in part. However, he abandoned this aspect of his challenge prior to the hearing.[2] The amount remaining in dispute is therefore only $2,484.
[2]Memelink v Official Assignee [2020] NZHC 2709 at [1]–[2] and [80].
Mr Memelink wished to appeal against the Tribunal decision, but he failed to do so within the time limit prescribed in s 117(6) of the Residential Tenancies Act 1986 (the Act) which requires that any notice of appeal be filed within 10 working days after the date of the decision to which the appeal relates. Mr Memelink claims that the registry staff at the District Court did not provide correct guidance on the required form until after the appeal period had expired. Mr Memelink’s appeal was subsequently struck out by the District Court on 28 February 2020 on the basis it was not brought within time and there was no power to extend…

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: [2020] NZCA 575
Decision Date: 18 November 2020 at 3 pm

CaseChat Overview and Summary

The appeal in Memelink v Body Corporate 378945 involved Harry Memelink, as trustee of Link Trust No.1, who sought to challenge a decision of the Tenancy Tribunal and subsequent rulings by the District Court and the High Court. The dispute centred around a Tribunal order for unpaid operating expenses, interest, and costs, which Memelink sought to appeal but failed to do so within the statutory time limit. The Tribunal's order was paid in part, but Memelink contested the remaining $2,484, which was related to costs incurred post his adjudication as bankrupt.

The legal issues before the Court of Appeal related to the interpretation and application of the statutory time limits for appealing Tenancy Tribunal decisions, specifically under sections 117(6) and 96 of the Residential Tenancies Act 1986. Memelink argued that the Tenancy Tribunal had the authority to extend the 10 working day time limit for filing an appeal to the District Court under section 96, which allows the Tribunal to extend time limits or waive procedural requirements. The Court had to determine whether the proposed appeal raised a question of law that was of sufficient general or public importance to warrant further consideration.

The Court of Appeal held that the Tenancy Tribunal did not have the authority to extend the time limit for filing an appeal to the District Court under section 96 of the Act, as this provision only applied to time limits and procedural requirements relating to Tribunal proceedings, not to appeals from the Tribunal's decisions. The Court found that the proposed appeal did not meet the criteria for special leave, as it was not seriously arguable and lacked a sufficient prospect of success. The Court emphasised the high threshold for granting leave to appeal and considered the modest sum in dispute and the lack of any defence to the Tribunal's substantive order. Accordingly, the application for leave to appeal was declined.

The Court ordered that the applicant, Harry Memelink, must pay the respondent's costs for the standard application on a band A basis, along with any usual disbursements. This order mirrored the costs awarded in the High Court on both the substantive appeal and the leave application.

Orders